Sathish K Thomas vs State Of Kerala

writ petitions are filed by the Association for Physiotherapists and practising Physiotherapists, seeking a direction to the State to create a Council for Physiotherapists. Also petition by Indian Medical Association -- direction to constitute a separate department in the State to take necessary steps to check quackery. Physiotherapists in the State engaged in the practice of modern medicine without any authority.Indian Medical Council Act, 1956 is to regulate the medical practice and only qualified medical degree holders can practice in modern medicine. Petitioner(s) Exhibits Petitioner 1 True Copy Of GO(RT) No.1958/2012/H & FWD Dt. 13-6-2012. Petitioner 2 True Copy Of The Delhi Council For Physiotherapist & Occupational Therapy Act 1997 Respondants Exhibits Respondant 3(A) True Copy Of The Proceedings of the director of health & services,Trivandrum Dt. DATED 3/2/1999. writ petitions are allowed.

Writ Petition (C) No. 15870 of 2012 

APPELLANT/PETIONER  :
Satish K Thomas(PT),               
Kollamparambil House, Kavvachira, Thoyammal Bala.
P.O. Hosdurg , District Kasargod.

RESPONDANT ; 
1. State of kerala, represented by its secretary to governmentHealth & Family Welfare DepartmentGovt.           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. The Director of Medical Edication Thiruvanantpuram
3. Indian Association Of Physical Medicine & RehabilitationKerala Chapter, Sanjeevami, Church RoadChovva, Kannur
4. India Medical AssociationKerala State Branch, IMA State HeadquartersAnayara,ANAYARA,ThiruvanantpuramRepresented by its secretary.

ADVOCATES APPEARED

PETIONER
Adv. Jose J.Mathaikal, Smt. Adv V.P.Seemandini, Adv. Ramesh 

RESPONDANT 
1 & 2 Govt. Pleader Adv. Ron Bastan
3 & 4 Sri V.V Asokan,Adv. K.I Mayakutty Mather,Adv K.G Anil

JUDGES : Hon'ble Mr. Justice A. Muhamed Mustaque

ACTS & SECTIONS
The Indian Medical Council Act, 1956
The Occupational Therapy Act, 1997

JUDGMENT

These writ petitions are related to the practice of Physiotherapists in the State. Except W.P(C) No.20335/2013, all other writ petitions are filed by the Association for Physiotherapists and persons who are practising as Physiotherapists, seeking a direction to the State to create a Council for Physiotherapists. W.P(C) No.20335/2013 is filed by the Indian Medical Association seeking a direction to constitute a separate department in the State to take necessary steps to check quackery. It is alleged by them that many Physiotherapists in the State engaged in the practice of modern medicine without any authority. According to the Indian Medical Association, the Indian Medical Council Act, 1956 is to regulate the medical practice and only qualified medical degree holders can practice in modern medicine.
W.P.(C) No.15870/2012 & conn. cases 2

2. Heard Smt.V.P.Seemandini, Sri.Ramesh and Sri.Jose J. Mathaikal, learned counsel for the petitioners. I have also heard Sri.K.I .Mayankutty Mather, learned counsel appearing for the Indian Medical Association.

3. Physiotherapists in the State through their Association raised a demand with the Government for formation of a Physiotherapy Council. They also filed a writ petition before this Court as W.P.(C) No.36941/2010. This Court disposed of the writ petition directing the Government to consider the representation. The Government, by order dated 13.06.2012, rejected the demand for formation of Council. The said order is produced as Ext.P5 in W.P.(C) No.17506/2012. The reasons for rejection are enumerated in the order. It is appropriate to refer to those reasons.

"a) At present the medical practitioners who have necessary qualifications prescribed in Medical Council of India Act, 1956 are legally entitled for examination, diagnosis and making a treatment plan of patients, whereas the physiotherapists are functioning only as a supportive group.

b) The qualifications prescribed by the UGC in terms of appointment of teachers in physiotherapy do not  W.P.(C) No.15870/2012 & conn. cases 3 seem to be mandatory in the field of medical education in Kerala.

c) The argument that the physiotherapists are undergoing a study period of four and half years for getting Degree Certificate, is equally applicable in the case of B.Sc MLT, B.Sc M.Pharm, B.Sc Nursing and the like. That means, the Physiotherapy course is not unique, in terms of its duration or structure, as claimed by the petitioners.

d) Before moving for the formation of an independent council they have to establish it as a separate system of medicine by achieving the recognition from the Medical Council of India.

e) At present, physiotherapists are generally included in the category of Allied Health Professionals both in India and abroad. In short it is a supportive group for the medical profession and does not have an independent status. They are only adjutants for effective cure and recovery.

f) The proposed Paramedical Council consists of Doctors belonging to different specialities of modern medicine. On the contrary, the demand of the petitioner is to form an exclusive council, consisting of physiotherapists alone. This demand could not be accepted, since such a council is likely to have a biased and baseless approach in all the matters, including that of therapy. Besides, there is every chance on their part to start practising and  W.P.(C) No.15870/2012 & conn. cases 4 prescribing medicine, on their own risk. And ultimately, this will create a competition and parallel generation of quacks, which may adversely affect the public health of the state.

g) Above all, if a separate council for physiotherapists is formed on the basis of the present request, it is obvious that the other categories now included in the list of technicians under the paramedical council, will also emerge with strong demand to constitute independent councils, with justifications of their own; followed by legal and other dynamic interventions".

4. Learned counsel for the petitioners, who represent the interest of Physiotherapists, challenged the order on many grounds. They pointed out the Regulations in other States in India. They also relied on the Model Curriculum Handbook of Physiotherapy issued by the Union Ministry. According to them, Physiotherapy has been recognised as a profession and it is necessary to regulate the profession by creating an accountability by registration. It is argued that in order to prevent the practice of Physiotherapy by unqualified hands, such Regulation is a must. Learned counsel also referred to the syllabus of the University in the State which impart courses in Physiotherapy. It is submitted that since they are rendering health related service, the  W.P.(C) No.15870/2012 & conn. cases 5 Physiotherapists will have to be treated as Allied and Health Care Professionals (Physiotherapy). It is also argued by the counsel that they have no intention to encroach upon the practice of modern medicine as regulated by the Indian Medical Council Act, 1956. Learned counsel further argued that the Principal Secretary of the Family Welfare Department who authored Ext.P5 order entertained bias and issued the order with prejudicial mind.

5. On the other hand, learned counsel for the Indian Medical Association, defending the Government Order, submitted before this Court that the intention of the Physiotherapists' Association is to engage in modern medicine practice under the umbrella and the shelter of the Council which they propose to formulate. Learned counsel vehemently opposed the constitution of any Council. It is argued that without the supervision or control of medical practitioners, Physiotherapists cannot be permitted to practice independently. Learned counsel submitted that it is necessary to diagnose a patient before administrating any medical service and it would be dangerous to allow the independent practice of the Physiotherapists who have no expertise in the field.
W.P.(C) No.15870/2012 & conn. cases 6

6. The role of the Court is very limited. Health is a major concern of the State. It is for the State to regulate any personnel engaged in health service. The Court has an expertise in the field. However, what looms at large is the public interest of the people in the State. It is necessary to prevent illegal practice by unqualified hands. Law is the weapon and authority for the State over the community. In the absence of law, persons who have no qualification will engage in the service which require regulation. In order to check illegal practices, Regulation is essential. It is appropriate to refer Physiotherapy as a profession as referred in the handbook issued by the Union Government.

"Physiotherapy practice spans the continuum from health promotion to prevention to rehabilitation for individuals and populations throughout the lifespan. Physiotherapy diagnoses movement dysfunctions based on skillful examination and evaluation regardless of the cause or etiology and provide skilled therapeutic intervention to foster improvement in physical functioning and maximizing overall quality of life. Physiotherapists provide the initial access into the health care system for persons with impairments and functional limitations amenable to physiotherapy and engage in collegial referral  W.P.(C) No.15870/2012 & conn. cases 7 relationships with other health care professionals.

Physiotherapist's role also includes that of case manager, teacher, researcher, and consultant. The faculty believes the first priority of education is to prepare people for a well-rounded, balanced life with broad social and cultural interests and as involved, active citizens of our country.

Physiotherapist must have commitments to lifelong learning and to search for the evidence that supports and advances practice. Critical thinking, problem solving, intellectual perseverance and courage are all essential characteristics of the successful physiotherapist.

About Physiotherapy Physiotherapists are health care professionals with a significant role in health promotion and treatment of injury and diseases. They combine their in-depth knowledge of the body and how it works with specialized hands-on clinical skills to assess, diagnose and treat symptoms of illness, injury or disability.

All physiotherapists registered to practice are qualified to provide safe and effective physiotherapy. They have met national entry-level education and practice standards, and have successfully passed a standardized physiotherapy competence examination".

W.P.(C) No.15870/2012 & conn.cases 8

7.There are two key issues in the matter.One is in relation to the illegal practice of Physiotherapists by unqualified hands. Second is related to the practice of modern medicine by qualified Physiotherapists without the supervision or control of qualified practitioners of modern medicine. To secure the interests of the public, it is necessary to regulate the activities of the Physiotherapists. This Court is of the view that the formation of the Council is the one way to regulate the practice of Physiotherapists in the State. The Council can define modalities of practice by Physiotherapists without encroaching upon the practice of modern medicine as regulated under the Indian Medical Council Act, 1956. This is necessary to check the illegal practice of Physiotherapy by unqualified hands. It is also essential to create accountability for Physiotherapists in the State. As apprehended by the Indian Medical Association, if the Physiotherapists engage in the practice of any other area of medicine, certainly they can be de-registered by the Council.

Therefore, it is essentially in the interests of both the Physiotherapists and the practitioners of modern medicine, a separate Council is formed to regulate the practice of  W.P.(C) No.15870/2012 & conn. cases 9 Physiotherapy and also to create accountability of such practice. It appears that the Government in its order dated 13.06.2012, viewed that the attempt of formation of a Council of Physiotherapists is to practice a separate system of medicine. The Government itself is misdirected on a perceived notion that the Physiotherapists are attempting to practice independently in the specialised field of modern medicine. This Court is of the view that if a Council is formed, the State can demarcate the boundaries of engagement by the Physiotherapists in providing health service to the people. In what manner they can discharge the service also can be regulated by the Council. It is also highly necessary to prevent the illegal practice of Physiotherapy by unqualified hands. Thus, public interests demand intervention of the State to regulate the activities of Physiotherapists in the State. This Court cannot direct the State to come up with a legislation. For the same reasons referred in the Government order dated 13.06.2012, this Court is of the view that the practice of Physiotherapy must be regulated by the State. I am at aghast to note that the Government rejected the demand for formation of a Council on a notion that the Physiotherapists  W.P.(C) No.15870/2012 & conn. cases 10 demand practice in modern medicine. It is unknown on what basis such a notion was entertained by the Government. Government need be concerned only about the larger public interest in the matter. The larger public interest demands formulation of Regulation for the practice of Physiotherapy. That concern has been overlooked in the matter.

Therefore, the Government Order dated 13.06.2012 impugned in all the writ petitions is set aside. To protect the interests of the public by preventing illegal practice of modern medicines or any other field of medicine by Physiotherapists and also to check illegal practice of Physiotherapy by unqualified hands, the State will have to reconsider the matter. As already noted, it is within purely the domain of the State to decide whether such practice be regulated through legislation or not. The Court can only highlight the concern of public interest and it cannot direct the State to come up with a legislation. Therefore, the Chief Secretary of the State shall bestow attention in this regard and take appropriate decision within a period of four months. The Chief Secretary shall also ensure that illegal practice of modern medicine by Physiotherapists is stopped by  W.P.(C) No.15870/2012 & conn. cases 11 taking adequate steps in this regard. Needless to say, the Chief Secretary shall consider views of all the stakeholders before taking any decision.

All the writ petitions are allowed.

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W.P.(C) No.15870/2012 & conn. cases      8



       7.    There are two key issues in the matter.          One is in