“NURSING ACT-ANALYSIS AND LEGAL VALIDITY”.

[A Research Project Work towards fulfilment of ‘VII’ Semester BBA LLB

SEC-A Integrated Course for the academic session 2021-22]

SUBMITTED BY:
SHIVAM SOLANKI
Reg. No. 1841801035
Batch-2018-2023
5 years Integrated BBA LLB SEC-A
SUBMITTED TO: MR.AKASH TRIKHA

S.O.A NATIONAL INSTITUTE OF LAW (SNIL)

SIKSHA ‘O’ ANUSANDHAN (Deemed UNIVERSITY),
BHUBANESWAR

1
 DECLARATION

I certify and hereby declare that the Project Work on the topic “NURSING ACT-
ANALYSIS AND LEGAL VALIDITY” for the academic session 2020-21, has been
prepared by me under the guidance of MR.AKASH TRIKHA, SNIL and I declare that the
same has not been submitted for evaluation elsewhere.

SHIVAM SOLANKI
5 years Integrated BBA LLB SEC-A (7th Semester)
Reg. No. 1841801035
S‘O’A National Institute of Law (SNIL)
S‘O’A University, Odisha, India

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 PREFACE

It gave me an immense pleasure to write a preface of my Research work titled NURSING ACT-
ANALYSIS AND LEGAL VALIDITY.

In the1st chapter I have introduced my project topic.

In the2nd chapter of my project related to legislative Provisions.
In the3rdchapter, I have discussed about the Judicial Analysis.
In the4thchapter I have concluded my Topic.
I have tried my best to explain the subject matter in a best possible way and had tried to omit
the errors, if found any, I request the student reading this research work, and the teacher who
are honouring me by using the same, to let me know those errors and omissions, so that I can
rectify the omissions in my next research work. Needless to say such suggestions will be
gratefully received and acknowledged!

SHIVAM SOLANKI
5 years Integrated BBA LLB SEC-A (7th Semester)
Reg. No. 1841801035
S‘O’A National Institute of Law (SNIL)
S‘O’A University, Odisha, India

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 ACKNOWLEDGEMENT

I take this opportunity to express my gratitude to the people who have been instrumental
in the successful completion of this Research Work. I owe a great many thanks, to many people
who have helped and have supported me throughout the making of this Project Work. I would
like to show my greatest appreciation to DR S.A.K AZAD, SNIL I can’t say thank you is
enough for his tremendous help and support.

My deepest gratitude to MR. Akash Trikha , SNIL, for guiding me and correcting
various documents of mine. He has taken pain to go through the topic and suggest me necessary
correction as and when needed.

I would also like to thank my friends without whom this Project work would have been
a distant reality. I will be failing in my duties if I do not extend my heartfelt thanks to my family
and well wishers.

Above all, my special thanks; gratitude goes to the Almighty God for the divine
intervention in this academic endeavour.

Thank you!

SHIVAM SOLANKI
5 years Integrated BBA LLB SEC-A (7th Semester)
Reg. No. 1841801035
S‘O’A National Institute of Law (SNIL)
S‘O’A University, Odisha, India

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 TABLE OF CONTENTS

Sl. No Chapter Page no

Chapter-1 (Introduction) 6
1

Chapter-II (Legislative Provision) 24

Chapter-III(Judicial Analysis) 38

Chapter-IV(Appraisal and 52
4 Suggestion)

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CHAPTER I
INTRODUCTION
The Constitution of India lists various items that fall within the legislative jurisdiction of
Parliament as well as the state legislatures. The Concurrent List includes matters on which both
Parliament and state assemblies can frame laws. However, if on a matter under the Concurrent
List, both Parliament and state legislatures enact a law and there is a contradiction in their
provisions, then the central law will override the state law. Matters related to health are
enumerated in both the State List and the Concurrent List. The public health, sanitation,
hospitals and dispensaries come under the State List .However, education including technical
education, medical education and universities and legal, medical and other professions come
under the Concurrent List of the Constitution. Thus, both Parliament and state assemblies have
enacted laws to regulate the health sector. The regulation of nursing education and professional
practice of nursing professionals is governed by central laws such as Indian Nursing Council
Act 1947 and as well as state laws such as state nursing council act of the respective states/
nearby jurisdiction of states.

In India, the formal nursing education began in 1871 at School of Nursing in Madras. Later,
several nursing training institutes started providing nursing education. Thus, probably a need
was felt to bring the law to regulate the nursing education and practices in the region and the
first nurses’ registration act “The Madras Nurses and Midwives Act No. III of 1926 was passed
on 29 June 1926 in the Madras Legislative Council of Madras. Later, in other regions and
provinces of India such legislations were passed for the registration and better training of
nurses, health visitors, midwives and dais in the particular region/ state or provinces.
On 15August1947 with India becoming independent, the graduate nursing university level
nursing degree courses started at Rajkumari Amrit Kaur College of Nursing, Delhi and College
of Nursing, Christian Medical College, Vellore, Tamil Nadu in 1946 and later in other parts
of the country in public as well as private sector. The Indian Nursing Council Act, 1947 was
passed by the Parliament of India to expedite constitute an Indian Nursing Council to establish
a uniform standard of training for nurses, midwives and health visitors. The primary function
of the Indian Nursing Council (INC) is to ensure minimum nursing educational standards,
recognise nursing qualifications and prescribe nursing courses admission criteria and
curriculum. The Council is composed of elected and nominated members for tenure of five

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years. It makes recommendations to the central government on matters related to the nursing
education.
The INC is required to monitor the standards of nursing education, prescribe the minimum
standards of nursing education required for granting recognised nursing qualifications, grant
permissions for establishment of new nursing schools / colleges, increase in admission capacity
or for starting new or higher course of study or training in the established nursing schools or
colleges; oversee the qualifications, registration and licensing of nurses in state nursing
councils, and their professional conduct; and maintain a register with names of all nurses,
midwives and health visitors having recognised qualifications and are licensed to
practice as nurse, midwife or health visitor. The state nursing councils are additionally
responsible for conducting the examinations for the certificate or diploma nursing courses and
registering the qualified person as nurse, midwife, auxiliary nurse midwife or health visitor.

The INC Act, 1947 and the different state nursing acts enacted from time to time, ensure the
regulation of nursing education, registration of nurses, maintenance of a cumulative register of
the nurses, midwives and health visitors registered in the council, and periodical renewal of the
nursing practicing license. Most of the state nursing council act also have provision for
protection of title and practices of nurses in particular state (…that no person other than who
is registered under state nursing council act can use the title as nurse, midwife or practice as
nurse or midwife; if anyone do so can be convicted or legally implicated) but these acts
prescribe very minimal penalty for the violators. Moreover, only selected state nursing council
acts such as Tripura Nursing Council Act 1986 have included the clause of “Prohibition of
employment of unregistered persons in healthcare facilities of the particular jurisdiction”. I
hope that is the reason many unqualified and unregistered persons are practicing as nurse or
midwife in small scale private healthcare facilities. In one of my studies, it was found that more
than 50 percent unqualified personnel were performing the nursing job in private nursing
homes of Punjab state (Sharma, 2016). The nursing education has undergone the tremendous
changes in recent years. Today, we have different levels nursing educational courses ranging
from basic nursing to the advanced nursing programmes such as auxiliary nursing midwifery
(ANM), diploma in general nursing & midwifery (GNM), graduate nursing degree, masters
nursing degree, super-specialties nursing diploma, MPhil nursing, doctorate nursing
programme. Further, recently Indian Nursing Council has also started nurse practitioners
programme in critical care and primary health care.

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However, it is essential to bring mechanisms so that no other than trained and registered
nurse or midwife can use the title as nurse and practice as a nurse or midwife in any healthcare
facility.

Indian Nursing Laws and Acts: History & Development

The South East Asia and India’s first nursing registration act “The Madras Nurses and
Midwives Act No.III of 1926 was passed in the Madras Legislative Council of Madras in 1926
that came into force on 14 February 1928. Thereafter, several acts were passed in different
states of India. However, the focus of these acts was on the curriculum for the nursing courses,
conducting examination, awarding certificates or diplomas and the provision of registration for
the nurses, health visitors, midwives, auxiliary nurse midwives and dais.

Current Status of Nursing Practice and Regulation

On the lines of Indian Nursing Council, most of the state legislative assemblies in India have
enacted the Nursing Council Acts and have established the Nursing Councils. However, these
acts are very primitive to regulate the nursing practices considering and comparing the present
national and international nursing scenario.

Purpose of Nursing Practice Act

The practice of nursing requires specialised knowledge, skill and independent decision making.
Nursing careers take widely divergent paths; practice focus varies by setting, by type of client,
by different disease, therapeutic approach or level of rehabilitation. The practice of nursing is
a right granted by a state to protect those who need nursing care, and safe, competent nursing
practice is grounded in the guidelines of the state NPA. All nurses have a duty to understand
their NPA and to keep up with ongoing changes as this dynamic document evolves and the
scope of practice expands.
As with Medical Council of India Act, existing Indian Nursing Council act 1947 needs to be
amended to have a robust Nursing Practice Act, which will have two components i.e. Standards
of Nursing Education and Nursing Practice. On the other hand, on American pattern all states
and union territories may have a nurse practice act (NPA). Each state’s NPA should be enacted
by the state legislature. However, NPA at national level or state level itself will not be sufficient
to provide the necessary guidance for the nursing profession. Therefore, an independent Board

8
of Nursing / State Nursing Council that has the authority to develop administrative rules or
regulations to clarify or make the law more specific is imperative. Rules and regulations must
be consistent with the NPA and cannot go beyond it. These rules and regulations undergo a
process of public review before enactment. Once enacted, rules and regulations have the full
force and effect of law. Although the specificity of NPAs may vary among states, but a broader
national level NPA must include:
Authority, power and composition of a board of
nursing
• Education programme standards
• Standards and scope of nursing practice
• Types of titles and licenses
• Requirements for licensure
• Grounds for disciplinary action, other violations and possible remedies.

Nursing practice entails risks; medications and treatments have benefits and side effects;
clinical situations are underdetermined, open-ended, and highly variable (Benner, et al 2010).
Providing nursing care sometimes feels like an unprotected intersection being navigated by the
new driver. As with the new driver, education and standards provided by laws designed to
protect the public provide guidance in nursing practice (National Council of State Boards of
Nursing,1996). A lay person does not necessarily have access to the credentials of a health
professional nor can one ordinarily judge whether the care received is delivered according to
the standard of care. Because health care poses a risk of harm to the public if practiced by
professionals who are unprepared or incompetent, professionals are governed by laws and rules
designed tominimise the risk (NCSBN, 1996). That protection is in the form of reasonable laws
to regulate occupations such as nursing. Consequently, these laws include standards for
education and scope of practice as wellas discipline of professionals.
Nursing Practice Issues in India
Nurses play an integral role in the healthcare industry, providing care to patients and filling
leadership roles at hospitals, health systems and other organisations. Yet, being a nurse is not
without its challenges. It’s a demanding profession that requires a lot of dedication and
commitment. Practice issues faced by nurses today are numerous.
(i) Legal safety for nursing practices: There is no defined scope of practice for different level
of nurses.

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Therefore, nurses are not legally safe what they practice and they are not sure what they can or
cannot
practice.
(ii) Public Safety: There is no defined scope of work for
nurses working at different level. The diploma and
graduate nurses cover general nursing responsibilities as well as nursing specialties without
holding
desired license, which jeopardise the safety of careseeking people.
(iii) Short staffing:Staffing is an issue of both professional and personal concern for nurses
today. In fact, many nurses leave a hospital job on this count.
(iv) Workplace violence:Another major challenge nurses face is violent behaviour while on the
job, from patients or co-workers.
(v) Long working hours:Nurses are often required to work long shifts. But in a number of cases,
nurses must work back-to-back or on extended shifts, risking fatigue that could result in
medical mistakes.
(vi) Workplace hazards:Nurses face a number of workplace hazards each day due to exposure
to blood borne pathogens, injuries, hand washing-related dermatitis and cold and flu germs.
(vii) Compensation:When it comes to nurse compensation, regional differences are to be
expected based on cost of living.
Needs of Nursing Practice Regulations in India
The nursing education has undergone rapid development in recent past. Today country has
nurses qualified with postgraduate specialty and super-specialty nursing degrees. Moreover,
recently Indian Nursing Council has developed the curriculum for nurse practitioners course in
critical care nursing and nurse practitioner in primary health care to independently manage the
patients in remote communities as well as the critical care units with limited prescribing rights.
However, our existing Indian Nursing Council Act 1947 as well as state nursing and midwifery
council acts are limited in power to manage the routine functions of nursing council, prescribe
nursing curriculum, develop nursing educational standards, granting the approval for the
nursing educational institutes to run the nursing courses or withdraw the approval for institutes
which did not meet the prescribed standards. In addition, state nursing acts also empower the
respective state nursing council to conduct examinations for the ANMs, GNMs and Post Basic
diploma courses and register the qualified persons to practice as nurse and/ or midwife and
protect the title of nurses and midwives so that none other than a duly registered person can
use the title as nurse or midwife and practice as nurse or midwife in particular state.

10
Surprisingly, many nurses are not even aware of the NPA as a Law, and unknowingly violate
aspects of this statute (NCSBN, 2011b). This is an unfortunate lapse because these
administrative rules and regulations answer crucial questions that nurses have about the day-
to-day aspects of practice and unusual occurrences. The laws of the nursing profession can only
function properly if nurses know the current laws governing practice in their state. Ignorance
of the law is never an excuse!
Indian Nursing Council initiative towards Nurse Practice Act
Ministry of Health and Family Welfare (MOHFW) has constituted the committee under the
chairmanship of President, Indian Nursing Council to prepare the draft Nurse Practice Act.
This multi-disciplinary committee represents WHO & JHIPEGO and other stakeholders. INC
has included the Trained Nurses Association of India (TNAI) President and Mrs GK Khurana,
President, All India Govt Nurses Federation as members. However, the committee felt that it
will be confusing to have two separate acts i.e. Indian Nursing Council act, 1947 and Nursing
Practice Act; therefore, it will be better to incorporate the practice component in existing Indian
Nursing Council act, 1947. TNAI initiative towards Nurse Practice Act TNAI taken active
initiative to uplift the nursing profession identity. Nursing has its own identity as a health
profession, hence due recognition needs to be given to the role and contribution of Nursing
personnel to health care services in the hospital and the community. Nursing identity should be
reflected in all planning papers, documents and policy statements of government and non-
government organisations with a view to strengthening develop ment of Nursing, otherwise,
this sector of the health system gets neglected and status of the Nursing service gets further
diminished. Nursing should not be designated as “paramedical”, nor should its identitybe lost
under the term “health workers”. Nursing is supported by auxiliaries.
The term “Nursing personnel” can be used to collectively designate a wide variety of workers
of the Nursing team, both professionals and Nursing auxiliaries. TNAI have continuously
raised the issue of nursing practice act on several forms and platforms. Therefore, MoHFW,
has taken an initiative to draft Nursing Practice Act.

The practice of nursing as a registered professional nurse is defined as diagnosing and treating
human responses to actual or potential physical and emotional health problems, through such
services as case-finding, health teaching, health counselling, and provision of care supportive
to or restorative of life and wellbeing, and executing medical regimens as prescribed by a
licensed or otherwise legally authorized physician or dentist.

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Nursing includes professionals in clinical nursing, nursing management, healthcare quality
assurance and healthcare risk management. Many legal issues focus on nurses’ professional
negligence, employment, discrimination and licensing.

When you think of the very first nurses, what image comes to mind? Dress-like uniforms and
bedpans? This imagery is the result of history, when nurses used to work in a strictly task-
oriented role.

Now, what about nurses today? Would it surprise you that many people describe nurses and
doctors the same way, oftentimes having a difficult time distinguishing them in the medical
setting? This is mainly due to the expanded roles of nursing.

Today's nursing is a role that requires physical assessments, critical thinking, and collaborative
treatment plans, just to name a few duties. Therefore, nurses must understand the laws that
affect their practice, as well as their legal responsibilities in their professional roles.

Incompetence
Incompetence is lacking the ability, knowledge, or qualification to complete a required task.
For example, let's say a nurse that has no education, experience, or training in oncology
administers chemotherapy for the first time without instruction or supervision.

This situation can result in much more serious consequences for the patient, but what we are
focusing on in this example is the act itself. The nurse is performing a duty in which they lack
the education, experience, or training to complete; the act is incompetent.

Medical Professionals and caregivers who do their best to perform the requirements of their
jobs make decisions or complete tasks that can result in legal action being initiated against
them by clients/patients and co-workers. The concerned, informed, dedicated professional
always strives to implement the education and competency to successfully accomplish all tasks,
treatments, and responsibilities correctly and accurately. However, there are rare instances
when regardless of the application of the most strict standards for quality care, variations occur
which result in litigation. To help avoid these instances, it is important to be educated and

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informed about current laws, statutes, and standards that directly apply to your daily job
requirements and the options available to you if your best efforts are questioned in a court of
law.

Beneficence and Nonmaleficence

Many nurses are familiar with the term beneficence, which is a legal term that defines actions
that promote the well-being of others, specifically in the medical field. Beneficence is further
defined as taking action or not avoiding actions that are in the best interest of the patients
assigned to a medical professionals’ care.

Another guiding principle of nurses is the principle of nonmaleficence, which defines the
phrase "first, do no harm." This is the basis of one of the most important medical principles--
that a medical professional should not harm patients but do them good. This principle has been
researched and continues to be defined because medical professionals dealing with end-of-life
decisions may order treatments they believe will do good, without considering that the
treatments do harm (or only acceptable levels of harm).

Most treatments carry risk of harm and may result if the patient's medical outcome without
treatment will result in debilitating or terminal results. Therefore, one of the most important
considerations of physicians and nurses is to ensure that the patient understands all of the risks
and benefits associated with their medical treatment. Physicians and nurses should also ensure
that the patient agrees to implement treatment and document the understanding that the
potential benefits may outweigh the risks.

The principle of nonmaleficence is not easy to define or interpret. Nonmaleficence balances

against the principle of doing good (beneficence), and the effects of these two opposing
principles often give rise to the legal question of double effect. Not as familiar to nursing
professionals, double effect defines separate types of consequences that may be produced by
one single action. In medical issues, double effect may be the combined effect of beneficence
and nonmaleficence. An example of double effect is a dying patient using morphine or other
strong pain medications to obtain the beneficial effect of relieving pain and suffering, although
the drug may be having the maleficent effect of suppressing respirations and bodily functions,
which hastens the death of the patient.

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As many nurses know, disagreements can arise among patients, family members, and
healthcare professionals. In these cases, issues of autonomy arise. Autonomy can be questioned
and in conflict with beneficence when the patient or family disagrees with recommendations
that physicians and healthcare professionals believe will most benefit the patient. Different
societies and cultures settle these types of conflicts differently. Western medicine usually
recognizes the wishes of mentally competent patients to make their own personal decisions
concerning healthcare, even when medical professionals believe the decisions may be
detrimental to the patients. Other societies may choose beneficence over autonomy. Examples
include when patients refuse recommended treatments due to religious or cultural principles or
when patients desire excessive or unnecessary treatment due to hypochondria or when they
desire excessive cosmetic surgery. Medical professionals may need to balance the wishes of
the patient for medically unnecessary potential risks against the patient being informed and
consenting to the risks associated with their desired medical treatment. Autonomy and
beneficence/nonmaleficence may be combined to overlap. An example includes a breach of
autonomy that causes decreased confidence and less willingness to seek medical treatment
because these circumstances may cause inability to enforce beneficence.

Most laws involving malpractice cases come from common law and are based on the principles
of autonomy, beneficence, and nonmaleficence; therefore, malpractice suits that have already
been decided serve as a guide for future decisions.

Theories of liability
Theories of liability in medical malpractice and personal injury cases involve the following
legal theories:

Intentional torts involving

• battery,
• assault,
• false imprisonment,
• and intentional infliction of emotional distress.

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Negligence or gross negligence

All four legal elements of a medical malpractice or personal injury case must be proved in
order to successfully win a legal case. If just one element is not satisfied, the case will be
dismissed.

The four legal elements are:

• Duty (established relationship between the plaintiff and the defendant)

• Breach of Duty (failure to do what a reasonable and prudent professional would do
under similar circumstances)
• Damages (injuries)
• Causation (An established correlation between the acts of negligence and the injuries)

Defences to Negligence
Also important in legal cases are the specific defences to negligence. Contributory negligence
acknowledges the patient was irresponsible, negligent, or reckless regarding his or her own
healthcare. Comparative negligence is a defence in which the legal decision considers the
plaintiff's negligence against the negligence of the defendant in favour of comparative
negligence. The Last Clear Chance doctrine allows the plaintiff to recover, regardless of his or
her own contributory negligence. The person with the last available chance to avoid the
accident but who fails is liable for negligence. Another defence of negligence, pure
comparative negligence, allows recovery without regard to the extent of the plaintiff's
negligence.

Malpractice is very similar to negligence, but it is more specific. Medical malpractice is the
failure of a medical professional to follow the accepted standards of practice of his or her
profession, resulting in harm to the patient. Usually, proof of failure to comply with accepted
standards of medical practice requires the testimony of someone with expertise in the area of
medical practice. Some states have special evidentiary rules applicable to malpractice claims.

15
Malpractice includes four elements that the plaintiff must prove took place for damages to be
recovered.

• Duty of care is the easiest element to prove, especially for nurses who practice in a
hospital setting. All that is needed to be proved is that there existed a relationship
between the medical professional and the patient at the time of the alleged injury. This
relationship exists merely by having a patient on a unit, even if the patient is assigned
to one nurse.

For example, say you walk past the room of a patient who is not assigned to you and the patient
asks for your assistance. You can assist him and, simultaneously, establish a relationship. If
you choose not to assist the patient and something injurious happens to him because appropriate
medical care was omitted, your decision may ultimately result in a lawsuit. It is not a defense
to say, "He wasn't my patient." The patient always has a right to rely on all nursing staff of a
healthcare institution acting in the patient's best interests at all times. If a nurse is not
appropriately qualified to care for a patient, then an appropriately trained medical professional
should be found for the patient.

• Breach of duty is defined as the failure to adhere to the standard of care set by the
nursing profession, thus departing from a specific duty owed to the client. Evidence
of breach of duty presented to a jury includes testimony (including expert witnesses),
circumstantial evidence or res ipsa loquitur ("the thing speaks for itself," which is a
doctrine of law applicable to cases where the defendant had exclusive control of the
thing that caused the harm and where the harm ordinarily could not have occurred
without negligent conduct). The "test" of breach of duty is the reasonably prudent
person doctrine, which relies on the doctrine that essentially asks the question "did the
defendant act reasonably under the circumstances?"
• The element of injury (also called damages) not only includes physical harm but also
mental anguish and other invasions of the patient's (plaintiff's) rights. Nurses may be
negligent but not liable if no injury results to the client. For damages to be awarded, a
plaintiff must show that some measurable harm occurred.
• The element of proximal cause (also called causation) involves the concept of "foresee
ability"; that is, a logical link must exist between the nurse's act and the injury suffered.

16
 Proximate cause also relies on the "but for" test: "But for the 'act' the injury would not
have occurred." However, it must be clearly understood that the mere departure from
a standard procedure alone is not enough evidence to allow a client to recover
damages. Therefore, even if a logical link exists, if there is no proximate cause, there
is no liability.

Professional Liability
The Doctrine of Respondent Superior
Under the doctrine of Respondent Superior, a hospital may be party to a lawsuit brought about
by the negligent act of its nurse employee.

The areas that pose the most legal risks involving the Respondent Superior doctrine include:
• Failure to follow a physician's order: This negligent act can involve the failure of the
nurse to check doctors' orders before administering a medication to assess for
modifications of the order.
• Failure to report significant changes in a client's condition.
• Failure to take correct telephone orders: This act can be just as serious as the failure
to follow, understand and/or interpret a physician's orders correctly. Nurses who
disagree with a physician's order should not carry out an obviously erroneous order.
In such a case, the nurse should confirm the order with the physician first to see if
there may have simply been a miscommunication of some sort. However, if the
confirmed order is still obviously an error, then the nurse should notify the supervisor
immediately, and if necessary, proceed up the chain of command in the medical
facility until appropriate safe treatment is ordered.
• Failure to report defective equipment: A nurse may be held liable if the failure to report
a defect, which is not hidden from sight and known to be defective, is the proximate
cause of a client's injury.
• Failure to follow established standard procedure: This can involve failure to follow
proper isolation technique that can lead to cross contamination. This area continues to
be a growing concern, especially with regard to lawsuits.

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Patient Falls: This category of injury is in first place with regard to malpractice cases. It is
important to assess the patient to determine high risk of falls. This information must be
communicated to all staff. Nursing interventions must be instituted to: (1) teach the patient, if
not impaired, to call for assistance when getting out of bed or chair; (2) use 1/2 side rails at
head of bed at ALL times. (full side rails usually require a physicians order); and (3) use bed
or chair alarms for patients who are impaired due to medications and/or dementia. The best
advice is prevention and communication to staff and family. Some health care agencies are
using orange non-slip socks to alert staff. Most agencies use a computer-driven assessment
scale that gives a numerical score for patients that are a high risk for falls. It is also important
to assess other factors not always on the scale, such as a diagnosis of osteoporosis,
deconditioning of the patient, medications that affect judgment or reduce reflexes, history of
falls and/or fractures, and advancing age.
Patient Burns: This area not only includes the negligent practitioner who inadvertently leaves
heating equipment on a client's skin for too long, but also the client who, for example, spills
hot coffee on himself as he reaches for some other item on his dinner tray. If the patient is alert,
oriented and otherwise self-sufficient then there is usually no need to worry about a liability
charged against you. However, if the client hurts himself and is very old, very young, or
mentally and/or physically impaired, then there may be a suit filed. The nurse may be blamed
for the harm that resulted because of, or related to, not recognizing the vulnerability and history
of the patient.
Medication Errors: The RULE for establishing safe medication administration in nursing care
has historically consisted of the TRIPLE CHECK-- once - as you remove it from the shelf or
cart, once as you dispense it and once again as you replace it. Unfamiliarity with drugs can
result in nursing negligence. The nurse is ultimately responsible for understanding all
recommendations regarding potential drug interactions and therapeutic/side effects before
administering any type of drug.ALWAYS LISTEN to your PATIENT. Many patients are
aware of changes in their medications/treatments, and if a patient tells you they think a change
has been made or their prescribed treatment is not correct, ALWAYS assume the patient may
be accurate. Question orders that do not seem appropriate to you or your patient.
Sponge and instrument counts: This form of negligence causes severe pain, suffering and
liability cases, and it is usually caused by obvious negligence.

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Professional Responsibility
Every human being of adult years and sound mind has a right to determine what shall be done
with his/her own body. All types of medical treatment require a patient's consent. Informed
Consent in medical ethics refers to the idea that a person must be completely informed and
understand the potential benefits and risks associated with their choice of treatment. An
uninformed uneducated person is vulnerable and at risk for making inappropriate or even
dangerous decisions which do not reflect their values or wishes and may have a negative effect
on their health status. Patients can decide to make their own medical decisions, or can delegate
decision making responsibility to another person.

If the patient is incapacitated, laws in different geographical areas designate different processes
for obtaining informed consent, usually by having a person appointed by the patient or their
family to make medical decisions based on their best interest. The value of informed consent
has a close correlation with the values of honesty and autonomy.

The essentials of a valid consent are:

• Consent must be voluntarily made;

• The patient must be informed of all the information regarding the treatment before the
application; and
• The patient must be capable of giving consent.

However, in certain situations medical treatment can be initiated without consent. When a
patient is mentally incapable of understanding the treatment and make a decision, the physician
treating the incapable person can provide treatment. The treatment must be for the benefit of
the patient. The physician must exercise good faith in providing treatment. Moreover, in case
of an emergency, consent is not necessary. In case of an emergency, a surgeon can operate on
a child without waiting for authority from the parents where it appears impracticable to secure
consent.

Documentation: If you didn't chart it, you didn't do it! In a malpractice case, the patient's chart
can be nurse’s lifesaver or executioner. The following guidelines should be kept in mind when
documenting:

19
• Not to make derogatory remarks about the client's behavior (even if they are true). An
attorney would love to tell the jury that you wrote in the chart that his client was "rude,
belligerent, abusive," etc. He/she could even imply that the alleged negligent act was
committed because you did not like the client. Instead of using terms such as the ones
listed above, focus on describing the behavior that the client displayed that led you to
the conclusion that he/she was uncooperative or abusive. Let the jurors decide if they
were difficult to care for, if that was the case.
• Not to put incident reports in the chart (unless specifically required by your hospital's
policy manual). In addition, do not refer to the incident report in your documentation.
If you advertise the incident or have it in the record, the plaintiff's attorney can use it
against you. If it is not
present in the chart, then it becomes protected by attorney-client privilege. The
plaintiff's attorney cannot view it without a specific request for production.
• Not to try to cover up anything, no matter how embarrassing. Trial attorneys have a
wide, comprehensive, technologically effective system that will most likely lead to
having the truth discovered and proven in a court of law. It is better to honestly disclose
all information, embarrassing or not, first and up front in documentation and follow-
up representation with your attorney.
• Not to use the chart to blame other caregivers for doing or not doing something for
the client. Settle these issues at meetings or during one-on-one confrontations.
• To make each entry in the chart neat and legible. The chart reflects you and your
professionalism. Sloppy handwriting, poor grammar and misspellings do not present
a professional picture and can lead to poor client care when other staff members cannot
read or understand what you have written. (Be careful about late entries, as these are
often a warning and red flag for legal professionals indicating attempts to cover
mistakes).
• To quote the client directly or paraphrase what he/she has said, especially when
documenting on non compliant clients. Use quotation marks when you quote your
client directly. Client's actual statements can be revealing to a jury. If you were a juror,
who's side would you be on if the nurse accused of negligence wrote, "The client was
abusive and uncooperative for the length of the shift," or "The client stated, 'Look here
honey, I'm not going to take that medication because I just don't feel like it -- so get
out'." As a juror I'd say that the client was ultimately responsible for his own actions;

20
 the nurse was merely attempting to do her/his job.

Staffing Issues: Proper staffing is the hospital's responsibility, but also the nurse responsible
for proper, safe adherence to medical care. Adequate staffing also includes placing specially
trained nurses in specialty areas. A hospital is legally liable for negligence if it's staffing fails
to meet the standards of care in state licensure regulations -- such as a requirement to assign
specially prepared nurses to certain departments.

As a nurse professional, your staffing responsibility includes having the ability to responsibly
perform your patient ordered healthcare treatments safely and as prescribed. (If weekends,
holidays, or preferred shifts tend to cause staffing issues/shortages in your medical institution,
it may be necessary to take the steps to climb the chain of command in your healthcare
institution to ensure safe, appropriate medical care for the patients entrusted to your care.)

If you suspect that you will not be able to manage a certain assignment or treatment, inform
your supervisor immediately. If the response is inadequate and possibly negligent, or should a
client's condition worsen and you feel you cannot handle the situation, the nurse may consider
climbing the chain of command in their institution to ensure safe, competent medical care.

Patient Teaching: If you do not document patient teaching, you could lose your case in court.
By documenting your teaching and the client/family response to the teaching, you support your
defense of "reasonable standard of care" by providing proof of your instruction to the client
and/or family.

The court will use the following criteria to determine a standard method of client teaching
which is usually found in hospital policy manuals.

Evidence that the nurse identified the client/family's learning needs and documented a teaching
plan as part of the nursing care plan.
Evidence that the nurse evaluated the client/family response to the teaching and their
understanding.
Should you refer the client to another health care professional for teaching, (a dietitian for
example), you must document that you did refer the client to this dietitian and include the
subject of the referral: Some clients, as we all know, simply do not care to learn and will tell

21
you that they have no interest in learning, or that someone else will care for them after
discharge. Your best defense, in such a case, is to document the client's exact words when
he/she refuses teaching and arrange to meet with the caregiver, documenting his/her response
to the teaching.

Importance of Communication: Legal and ethical conflicts in medicine often are related and
can be traced back to a lack of communication. Failure to communicate between patients, their
caregivers and families, and their healthcare provider team and between members of the
medical community can lead to disagreements and conflicts. These communication
breakdowns can be resolved by open comprehensive lines of communication.

A do not resuscitate order is an advance directive that is to be followed when a person's heart
or breathing stops and they are unable to communicate their wishes to refuse treatment that
could allow them to die. Laws regarding do not resuscitate orders vary by state, so local laws
should be consulted for specific requirements in your area.

Nurse’s Rights

Defending Oneself
Plaintiffs who sue nurses may encounter common defense arguments to protect nursing
professionals. Nursing Defenses may include:

An Intervening Cause. This argument can be used if the negligent and injurious act of one
person is followed by the injurious act of another. In this case, the first negligent practitioner
can accuse the second negligent practitioner of causing the REAL damage.

The Client Failed to Follow Orders. For example, the client failed to take his medications as
instructed (and the documentation in the chart clearly indicates that the nurse completed
appropriate client teaching and the nurse clearly indicated the client's response to the teaching),
(example; the client/patient fell after he was told/instructed not to get out of bed and the dangers
of attempting to do so and patient education was thoroughly documented. Usually, in cases
such as these, the jury would see the client as being responsible for the situation in which he
now finds himself.

22
The Tragic Injury Occurred, but not as a result of negligence. This occurs in cases of burns,
falls and similar unfortunate but unforeseeable cases. If there was no negligence, then it was
an accident with no one to take the blame.

An Uncontrollable Factor Led to the Injury. In this defense, the defendant argues that it was
not a deviation from the standard of care that caused the injury, but instead, an anatomic
anomaly that resulted in the injury. This is argued in cases of injection injuries. The action,
which caused the injury, was based on a reasonable error of judgment. Here, you would need
to show the jury that, under the circumstances, although the act seemed reasonable, the injury
still occurred. You must prove that your knowledge and skill was utilized to your best ability,
and that a reasonable and prudent nurse would have done the same under the same
circumstances.

23
CHAPTER II

LEGAL PROVISION
IMPORTANT PROVISIONS FROM THE NATIONAL
NURSING AND MIDWIFERY COMMISSION BILL,2020

SECTION 2

(a) “Autonomous Board” means any of the Autonomous Boards constituted under section
11;

(b) “Chairperson” means the Chairperson of the National Nursing and Midwifery
Commission appointed under section 4;

(c) “Clinical Nursing” means safe, effective and high-quality nursing services in hospital
units or nursing care delivered elsewhere, such as clinics, ambulances. Nursing services from
tertiary hospitals to health posts in remote communities designated by acuity (emergency,
intensive care), condition (cancer, cardiac, gastrointestinal), intervention (surgery) or
population (paediatrics, obstetrics), and diagnostic services (laboratory and imaging).

(d) “Commission “means the National Nursing and Midwifery Commission constituted under
section 3;

(e) “Community Health Nursing/ Public Health Nursing” means primary healthcare and
nursing practice in a community setting for promoting and protecting the health of the
population using knowledge from nursing, social and public health sciences with an aim to
provide health services, preventive care, intervention and health education to community and

population.

(f) “Central Register” means the Indian Nurses and Midwives’ Register maintained by the
Nursing and Midwifery Ethics and Registration Board under section 25;

(g) “Nursing Care (including Home-based Personal Care) Assistant” means a person as
defined in Schedule I and having the requisite nursing care (including home-based personal
care) assistant qualification, as prescribed by the Nursing and Midwifery UG Education
Board;

24
(h) “Medically Unfit” means a person who is unable to perform task or duty because of
medical condition either physical or mental as proven by Competent Court/Authority under
Section 7;

(i) “Member” means a Member of the Commission appointed under section 5 and includes
the Chairperson thereof;

(j) Midwifery Associate” means a person having obtained any recognised midwifery
associate qualification, registered with Commission and as defined in Schedule I;

(k) “Midwifery Practice” means the scope and range of roles, functions, responsibilities and
activities, which a registered midwife may deliver as part of the services and as specified by
the regulations under this Act;

(l) “Midwifery Professionals” means the persons having obtained any recognised midwifery
professional qualification, registered with the Commission and as defined in Schedule I;

(m)“Midwifery Services” means care of women during pregnancy, labour, and the
postpartum period, as well as care of new born by Nursing & Midwifery Personnel;

(n) “Notification” means notification published in the Official Gazette and the expression
“notified” shall be construed accordingly;

(o) “Nursing Associate” means a professional having obtained any recognised nursing
associate qualification, registered with Commission and as defined in Schedule I;

(p) “Nursing and Midwifery Assessment and Rating Board” means the Board constituted
under section 20;

(q) “Nursing and Midwifery UG Education Board” means the Board constituted under
section 18;

(r) “Nursing and Midwifery PG Education Board” means the Board constituted under
section 19;

(s) “Nursing and Midwifery Ethics and Registration Board” means the Board constituted
under section 21;

(t) “Nursing institution” means a educational and training institution or research institution
within India, recognised under this Act, which grants diploma or undergraduate or
postgraduate or any other post degree diploma or certificate in nursing and midwifery, and
include affiliated colleges and deemed to be Universities;

25
(u) “Nursing & Midwifery Leader” means any nursing or midwifery professional who is the
Head or Dean of a nursing educational institution or Principal or Vice-Principal of a college
of nursing or Nursing Superintendent or Chief Nursing Officer of the nursing & midwifery

department or State/National level Nursing & Midwifery officer or Principal Nursing Officer
in the Community or any other nurse educator or nurse administrator or nurse practitioner
who has done exemplary work in the area of nursing and midwifery;

(v) “Nursing & Midwifery Personnel” means Nursing Professional or Midwifery

Professional or Nursing Associate or Midwifery Associate as defined under this Act;

(w)“Nursing Practice” refers to the scope and range of roles, functions ,responsibilities and
activities which a registered nurse may deliver as part of the services and as specified by the
regulations under this Act;

(x) “Nursing professional” means a professional having obtained any recognised nursing
professional qualification, registered with the Commission and as defined in Schedule I;

(y) “Nursing Services” means nursing care provided to a patient/client in all health care
settings by Nursing & Midwifery Personnel;

(z) “Prescribed” means prescribed by rules made under this Act;

(aa) “President” means the Nursing and Midwifery President of an Autonomous Board under
section 12;

(bb) “Recognised nursing & midwifery qualification” means a nursing& midwifery

qualification recognised under section 30 or section 31or section 34, as the case may be;

(cc) “Registered professional” means a nursing professional and midwifery professional who
has registration from any State Commission;

(dd) “Registered associate personnel” means a nursing associate and midwifery associate
who has registration from any State Commission;

(ee) “Regulations” means the regulations made by the Commission under section52;

(ff) “Scope of Practice” refers to the services that a qualified nursing professional, midwifery
professional, nursing associate, midwifery associate, nursing care (including home-based
personal care) assistant is deemed competent to perform and permitted to undertake in keeping

with the terms of their qualification, professional license and designation in an organization;

26
(gg) “Schedule” means a Schedule annexed to this Act;

(hh) “State Commission” means a State Nursing and Midwifery Commission constituted
under Section 24;

(ii) “State Register for Professionals” means State Nurses’ and Midwives’ Register for
registration as a Nursing professional or a Midwifery professional, maintained by State
Commission under Section25;

(jj) “State Register for Associates” means Register for registration as a nursing associate or
a midwifery associate maintained by State Commission under Section 25;

(kk) “University” shall have the same meaning as assigned to it in clause

(f) of section 2 of the University Grants Commission Act, 1956 and includes an institution
declared to be deemed University under section 3 of that Act.

Constitution of National Nursing and Midwifery Commission

SECTION 3.

(1) With effect from such date as the Central Government may, by notification, appoint in
this behalf, there shall be constituted a Commission to be called the National Nursing and
Midwifery Commission for exercising such powers and discharging such duties as may be
laid down under this Act.

(2) The Commission shall be a body corporate by the name aforesaid, having perpetual
succession and a common seal, with power, subject to the provisions of this Act, to acquire,
hold and dispose of property, both movable and immovable, and to contract, and shall, by
the said name, sue or be sued.

(3) The head office of the Commission shall be at New Delhi.

Composition of the National Nursing and Midwifery Commission

SECTION 4.

(1) The Commission shall consist of the following members namely:

(a) a person having an outstanding ability, proven administrative capacity and integrity and
possessing a postgraduate degree in nursing and midwifery profession from any University
with experience of not less than twenty–five years in the field of nursing and midwifery, out

27
of which at least ten years shall be a nursing & midwifery leader to be appointed by the
Central Government– Chairperson;

(b) Additional Secretary to the Government of India in the Department of Health and Family
Welfare in charge of nursing and midwifery– ex officio member;

(c) Nursing Advisor to the Government of India in the Department of Health and Family
Welfare – ex officio member;

(d) One representative of the Ministry of Defence not below the rank of Additional Director
General, Military Nursing Services to the Government of India in the Directorate General of
Armed Forces Medical Services - ex officio member;

(e) One representative of the Directorate General of Health Services not below the rank of
Additional Director General - ex officio member;

(f) One representative of the Indian Clinical Medical Research not below the rank of
Additional Director General - ex officio member;

(g) One person representing the National Medical Commission not below the rank of
Deputy Secretary to the Government of India – ex-officio member;

(h) Five persons representing out of the following on biennial rotation basis in alphabetical
order, not below the rank of Chief Nursing Officer or Nursing Superintendent of the
hospitals of the below listed Institutes, ex officio member

i. All India Institute of Medical Sciences, New Delhi;

ii. Armed Forces Medical College, Pune

iii. Banaras Hindu University, Varanasi;

iv. Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry;

v. King George Medical University, Lucknow;

vi. Madras Medical Colleges, Chennai;

vii. National Institute of Mental Health and Neuro-Sciences, Bangalore;

viii. North Eastern Indira Gandhi Regional Institute of

Health and Medical Sciences, Shillong;

ix. Post Graduate Institute of Medical Sciences, Chandigarh;

28
x. Regional Institute of Medical Sciences, Manipur;

xi. Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram;

xii. Tata Memorial Hospital, Mumbai; Provided that the Commission may add an Institute
of repute/excellence to the above list with the approval of Central Government.

(i) Five persons of the rank of Dean/ Principal on biennial rotation basis in alphabetical
order, from the following colleges of nursing attached to the institutions listed below under
the Ministry of Health and Family Welfare- ex-officio member:

i. All India Institute of Medical Sciences, Delhi;

ii. Rajkumari Amrit Kaur College of Nursing, Delhi;

iii. ESI Hospital, Bangalore;

iv. Vardhaman Mahavir Medical College (College of Nursing, Safdarjung Hospital), Delhi;

v. Dr RML Hospital;

vi. Lady Harding Medical College;

vii. Regional Institute of Paramedical and Nursing Sciences (RIPANS), Aizawl;

viii. Bhopal Memorial Hospital and Research Centre,Bhopal;

ix. Central Institute of Psychiatry, Ranchi;

x. Jawaharlal Institute of Postgraduate Medical Education and Research, Puducherry;

Provided that the Commission may add an Institute of repute/excellence to the above list
with the approval of Central Government.

(j) One person from each of the six zones, not below the rank of Chairperson who should be
a nursing and midwifery professional, representing the State Commissions on biennial
rotation in the alphabetical order as per the zonal distribution of State and Union Territories
–ex-officio member;

(k) Twelve nursing members of eminence, two from each of the six zones of nursing and
midwifery profession to be nominated by the State Governments, of outstanding ability,
proven administrative capacity and integrity, possessing a postgraduate degree in any
discipline of nursing and midwifery from any University and having experience of not less
than fifteen years in the field of nursing and midwifery out of which at least seven years

29
shall be as a nursing& midwifery leader - member; Provided that at least one member from
each zone should be dean nursing & midwifery or principal of nursing & midwifery
institute.

(l) Eight nursing& midwifery members of eminence, of which at least two should be
midwifery professionals and at least one should be from each of the six zones, to be of
nursing and midwifery profession to be nominated by the Central Government, of
outstanding ability, proven administrative capacity and integrity, possessing a postgraduate
degree in any discipline of nursing and midwifery from any University and having
experience of not less than twenty years in the field of nursing and midwifery out of

which at least ten years shall be as a nursing & midwifery leader - member;

(m)One person, representing charitable institutions engaged in education or services in

connection with any recognised category, having such qualifications and experience as may
be prescribed by the Central Government, to be nominated by the Central Government. –
member;

(n) One member of eminence to be appointed by the Central Government, in the manner as
prescribed by the Central Government, from amongst persons of ability, integrity and

standing, who have special knowledge and professional experience in such areas including
management, law, medical ethics, health research, consumer or patient rights advocacy,
science and technology and economics – member.

Removal of Chairperson and Member of Commission

SECTION 7.

(1) The Central Government may, by order, remove from office the Chairperson or any
other Member, who—

(a) has been adjudged an insolvent; or

(b) has been convicted of an offence which, in the opinion of the Central Government,
involves moral turpitude; or

(c) is incompetent to make decisions if found medically unfit and stands so declared by a
competent court; or

30
(d) has acquired such financial or other interest as is likely to affect prejudicially her/his
functions as a Member; or

(e) has so misused her/his position as to render her/his continuance in office prejudicial to
public interest.

(2) No Member shall be removed under clauses (d) and (e) of sub-section

(1) unless she/he has been given a reasonable opportunity of being heard

in the matter

Powers and functions of Commission

SECTION 10

(1) It shall be the duty of the Commission to take all such steps as it may think fit for
ensuring coordinated and integrated development of education and maintenance of the
standards of delivery of services, with periodic revision as specified by the regulations, in all
the following areas under this Act and for the purposes of performing its functions, the

Commission may:—

(a) frame policies and regulate standards for the governance of nursing and midwifery
education and training and make necessary regulations in this behalf;

(b) frame policies for regulating nursing and midwifery institutions, researches,
professionals & associates and make necessary regulations in this behalf;

(c) provide basic standards of education, physical and instructional facilities, assessment,
examination, training, research, continuing professional education, maximum tuition fee
payable in respect of various categories, etc. as may be specified by the regulations;

(d) provide standards for nursing & midwifery faculty and clinical facility in teaching
institutions as may be specified by the regulations;

(e) provide for uniform entry examination with common counselling for admission into the
nursing and midwifery institutions at the various level in the manner as may be specified by
the regulations;

(f) provide for National Exit Test- Nursing& Midwifery for nursing and midwifery
professionals for professional practice or entrance into postgraduate level in the manner as
may be specified by the regulations;

31
(g) assess the nursing and midwifery requirements in health care, including human resources
for clinical care nursing, community health nursing and health care infrastructure and advise
the Central Government on matters pertaining thereto;

(h) ensure policies and codes to ensure observance of professional ethics in nursing and
midwifery profession and to promote ethical conduct during the provision of care by nursing
and midwifery professionals, including nursing care associates and midwifery associates;

(i) promote, co-ordinate and frame guidelines and lay down policies by making necessary
regulations for the proper functioning of the Commission, the Autonomous Boards, the
Advisory Council and the State Nursing and Midwifery Commissions;

(j) ensure coordination among the Autonomous Boards;

(k) take such measures, as may be necessary, to ensure compliance by the State Nursing and
Midwifery Commissions of the guidelines framed and regulations made under this Act for
their effective functioning under this Act;

(l) exercise appellate jurisdiction with respect to the decisions of the Autonomous Boards;

(m)perform such other functions as may be entrusted to it by the Central Government or as

may be necessary to carry out the provisions of this Act. Provided that the Commission may
delegate such of its functions to the Autonomous Boards as it may deem necessary.

Indian Nursing Council Act 1947

SECTION-7 -Constitution and composition of the Council.

1) The Central Government shall as soon as may be constitute a Council consisting of the
following members, namely:-

(a) one nurse enrolled in a State register elected by each State Council.

(b) (b) two members elected from among themselves by the heads of institutions

(c) recognized by the Council for the purpose of this clause in which training is given-

(d) (i) for obtaining a University degree in nursing; or

(e) (ii) in respect of a post-certificate course in the teaching of nursing and in nursing

(f) administration;]

32
 (g) (c) one member elected from among themselves by the heads of institutions in

(h) which health visitors are trained;

(i) (d) one member elected by the Medical Council of India

(j) (e) one member elected by the Central Council of the Indian Medical Association

(k) (f) one member elected by the Council of the Trained Nurses Association of India ;

(l) (g) one midwife or auxiliary nurse-midwife enrolled in a State register, elected by

(m) each of the State Councils in the four groups of States mentioned below, each group

(n) of States being taken in rotation in the following order, namely: -

(o) (i) Kerala, Madhya Pradesh, Uttar Pradesh and Haryana],

(p) (ii) Andhra Pradesh, Bihar, Maharashtra and Rajasthan,

(q) (iii) Karnataka, Punjab, Himachal Pradesh and West Bengal,

(r) (iv) Assam, Gujrat, Tamil Nadu and Orissa

(s) (h) the Director General of Health Services, ex-officio;

(t) (i) the Chief Principal Matron, Medical Directorate, General Headquarters, ex
officio;

(u) (j) the Chief Nursing Superintendent, office of the Director-General of Health

(v) Services, ex officio;

(k) the Director of Maternity and Child Welfare, Indian Red Cross Society, ex
officio;

(l) the Chief Administrative Medical Officer (by whatever name called) of each State

other than a Union territory, ex Officio;]

(m) the Superintendent of Nursing Services (by whatever name called), ex officio,

from each of the States in the two groups mentioned below, each group of States

being taken in rotation in the following order, namely :-

(i) Andhra Pradesh, Assam, 2[Maharashtra], Madhya Pradesh, 3[Tamil Nadu], Uttar

Pradesh, 4[West Bengal and Haryana] ;

(ii) Bihar, 5[Gujrat] 6[Himachal Pradesh] Kerala, 7[Karnataka], Orissa, Punjab and

33
 Rajasthan];

(n) four members nominated by the Central Government, of whom at least two shall

be nurses, midwives or health visitors enrolled in a State register and one shall be an

experienced educationalist

(o) three members elected by Parliament, two by the House of the People from

among its members and the other by the Council of States from among its members.

(2) The President of the Council shall be elected by the members of the Council from

among themselves:

Provided that for five years from the first constitution of the Council the President shall
be a person nominated from amongst the members of the Council by the Central
Government, who shall hold office during the pleasure of the Central Government.

(3) No act done by the Council shall be questioned on the ground merely of the existence
of any vacancy in, or any defect in the constitution of, the Council.

SECTION 4. Incorporation of the Council. -

The Council constituted under section 3 shall be a body corporate by the name of the

Indian Nursing Council having perpetual succession and a common seal, with power

to acquire property both movable and immovable, and shall by the said name sue

and be sued

SECTION 8. Officers, Committees and servants of the Council.

(1) The Secretary of the Council (who may also, if it is deemed expedient by the

Council, act as Treasurer) shall, for three years from the first constitution of the

Council, be a person appointed by the Central Government and shall hold office

during the pleasure of the Central Government.

(2) The Council shall-

(a) elect from among its members a Vice-President;

(b) constitute from among its members an Executive Committee and such other

34
committees for general or special purposes as the Council deems necessary to carry out the
purposes of this Act ;

(c) subject to the provisions of sub-section (1), appoint a Secretary, who may also. if deemed
expedient, act as Treasurer;

(d) appoint or nominate such other officers and servants as the Council deems necessary to
carry out the purposes of this Act ;

(e) require and take from the Secretary, or from any other officer or servant, such security
for the due performance of his duties as the Council deems necessary;

(f) with the previous sanction of the Central Government, fix the fees and allowances to be
paid to the President. Vice President and members and the pay and allowances of officers
and servants of the Council.

SECTION 9. The Executive Committee

(1) The Executive Committee shall consist of nine members, of whom seven shall be
elected by the Council from among its members.

(2) The President and Vice-President of the Council shall be members ex officio of the
Executive Committee, and shall be President and Vice-President, respectively, of that
Committee.

(3) In addition to the powers and duties conferred and imposed upon it by this Act, the
Executive Committee shall exercise and dis-charge such powers and duties as the Council
may confer or impose upon it by any regulations which may be made in this behalf.

SECTION 12. Power to require information as to courses of study and training and

examinations.

Every authority in any State 1* * * which grants a recognised qualification or a recognised

higher qualification shall furnish such information as the Council may, from time to time,
require as to the courses of study and training and examinations to be undergone in order to
obtain such qualification, as to the ages at which such courses of study and examinations are
required to be undergone and such qualifications conferred, and generally as to the requisites
for obtaining such qualification.

35
SECTION 16. Power to make regulations.

(1) The Council may [by notification in the official gazette,] make regulations not
inconsistent with this Act generally to carry out the provisions of this Act, and in particular
and without prejudice to the generality of the foregoing power, such regulations may
provide for-

(a) the management of the property of the Council and the maintenance and audit of

its accounts ;

(b) the manner in which elections referred to in sub- section (2) of section 5 and in clause (a)
of sub- section (2) of section 8 shall be conducted ;

(c) the summoning and holding of the meetings of the Council, the times and places at
which such meetings shall be held, the conduct of business thereat and the number of
members necessary to constitute a quorum ;

(d) prescribing the functions of the Executive Committee, the summoning and holding of
meetings thereof, the times and places at which such meetings shall be held, and the number
of members necessary to constitute a quorum ;

(e) prescribing the powers and duties of the President and the Vice-President ;

[(f) prescribing the tenure of office and the powers and duties of the Secretary and

other officers and servants of the Council ;

(ff) prescribing the powers and duties of inspectors;]

(g) prescribing the standard curricula for the training of nurses, midwives and health
visitors, for training courses for teachers of nurses, midwives and health visitors, and for
training in nursing administration

(h) prescribing the conditions for admission to courses of training as aforesaid ;

(i) prescribing the standards of examination and other requirements to be satisfied to secure
for qualifications recognition under this Act ;

(j) any other matter which is to be or may be prescribed under this Act.

(2) To enable the Council to be first constituted, the President may, with the previous
sanction of the Central Government, make regulations for the conduct of the elections

36
referred to in sub- section (2) of section 5, and any regulations so made may be altered or
rescinded by the Council in exercise of its powers under this section.

2[(3) Every regulation made under this Act shall be laid, as soon as may be after it is made,
before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before
the expiry of the session immediately following the session or the successive sessions
aforesaid, both Houses agree in making any modification in the regulation or both Houses
agree that the regulation should not be made, the regulation shall thereafter have effect only
in such modified form or be of no effect, as the case may be; so, however, that any such
modification or annulment shall be without prejudice to the validity of anything previously
done under that regulation.]

37
CHAPTER III

JUDICIAL ANALYSIS
CASE NO.:1

Poonam Verma vs. Ashwin Patel (1996) 4 SCC 332

In this case, the Supreme Court differentiated negligence, rashness, and recklessness. A person
is said to be a negligent person when he/she inadvertently commits an act of omission and
violates a positive duty that he/she should have performed otherwise. A reckless person knows
the repercussions of his/her acts but stupidly thinks that they will not occur as a consequence
of her/ his act. Any conduct falling short of recklessness and deliberate wrongdoing should
not be the subject of criminal liability.

Thus a doctor has to be proved negligent or incompetent so that he/she can be held criminally
responsible for a patient’s death, with such disregard for the safety and life of his/her patient
that it amounted to a crime against the State.

Facts

Pramod Verma, husband of the appellant, Mrs. Poonam Verma fell ill and complained of
fever, and so on July 4th, 1992, Respondent No. 1, Ashwin Patel, who was an authorized
Homeopathic kept him under mediation and gave him some allopathic medicines for viral
fever for two days, i.e. up to July 6th, 1992 but even after these medications the condition of
Ashwin Patel didn’t improve so Respondent No. 1 shifted the medications from viral fever to
Typhoid Fever because according to Respondent No. 1 these two diseases were prevalent in
the locality.

But even then the condition of Ashwin Patel deteriorated and so on July 12th, 1992,
Respondent No. 1 asked the appellant to shift Ashwin Patel to Sanjeevani Maternity and
General Nursing Home under Dr. Rajeev Warty, Respondent No.2, and till July 14th, 1992 he
was there but on the same day, in the evening he was shifted to Hinduja Hospital in an
unconscious state where, after four and a half-hour of admission, he died. The Appellant,
therefore, filed a petition before the National Consumer Disputes Redresser Commission,
under Consumer Protection Act, Medical Council Act, and Maharashtra Medical Council Act,

38
New Delhi. She contended that due to the negligence on the part of Doctors he died. This case
was further passed to the Supreme Court.

Issue

Whether there was a breach of duty of care by Respondent No. 1 in the treatment of Pramod
Verma and whether this will amount to actionable negligence.

Decision

In this case, the respondent was a Homeopathic doctor, who prescribed an allopathic medicine
to a patient. The patient didn’t respond to the treatment and subsequently, he died. It had been
held that the respondent was a homeopathic doctor and wasn’t allowed under the law to
prescribe allopathic medicine. The respondent was held negligible and was ordered to pay
compensation to the aggrieved party. Supreme Court recognized carelessness, impulsiveness,
and recklessness. A careless individual is one who accidentally submits an illustration of
oversight and abuses a positive obligation. a person who is careless knows the outcomes yet
absurdly imagines that they won’t happen due to her/his demonstration. A foolish individual
realizes the outcomes however couldn’t care less whether or not they result from her/his
demonstration. Any direct missing mark regarding foolishness and purposeful bad behavior
ought to not be the topic of criminal liability. Sections 80 and 88 of the Indian legal code
contain guards for specialists blamed for the criminal obligation. Under Section 80 (mishap
in doing a legitimate demonstration) nothing is an offense that’s finished unintentionally or
disaster and with no criminal goal or information within the doing of a legal demonstration in
an exceedingly legal way by legal methods and with appropriate consideration and alert. As
indicated by Section 88, a person can’t be blamed for an offense within the event that she/he
plays out an indication in accordance with some basic honesty for the other’s advantage,
doesn’t attempt to cause hurt irrespective of whether there’s a danger, and also the patient has
expressly or verifiably given assent. Pramod Verma was 35 years old and was getting Rs.5,
700/- per month as salary. He died a young death which has deprived his dependants, namely;
the widow, two children, and fogeys, of the monetary benefit they were getting. They’re
entitled under law to be compensated. Pramod Verma was 35 years old and was getting Rs.5,
700/- per month as salary. He died a young death which has deprived his dependants, namely;
the widow, two children, and fogeys, of the monetary benefit they were getting. They’re
entitled under law to be compensated.

39
Rationale

The court identified the difference between negligence and other conduct. A negligent person
is one who unknowingly commits an act of omission and violates a positive duty. during this
particular case, the doctor Mr. Patel within the due course of treatment was negligent in his
acts by practicing the Allopathic system of medication, though he doesn’t hold any actual
locus of practicing the identical. Additionally, to the current, the court also recognizes the
nexus between the negligent actions during treatment and therefore the criminal liability
thereof of the doctor for the identical.

Conclusion

The court during this case identified the difference between negligence and other conduct. A
negligent person is one who unknowingly commits an act of omission and violates a positive
duty. During this particular case, the doctor Mr. Patel within the due course of treatment was
negligent in his acts by practicing the Allopathic system of medication, though he doesn’t
hold any actual locus of practicing the identical. a person who doesn’t know a specific system
of medication then again also practices therein concerned system then he is held guilty of
medical negligence. this can be a part of the understanding of how the definition of “medical
negligence” is argued today. Few would differ that wrongdoing, as in one another calling, has
to likewise be managed harshly within the field of medication. The law doesn’t attempt to
make any superfluous interruption into the domain which legitimately encompasses a place
just with clinical experts, and judges don’t look to force their own intelligence onto them. The
legitimate framework doesn’t receive total hands-off methodology either and investigates the
activities of a clinical expert and tries to rebuff the individuals who fall underneath the bottom
norm, and also the test for creating a call about the base standard is additionally vigorously
impacted by the pervasive clinical practices and conclusions, and also the assortment of data
accessible as on the important date.

40
CASE NO.:2

M/S. Spring Meadows Hospital and Another vs Harjol Ahluwalia through,

K.S Ahluwalia and Another

The court in this case has helped define the scope of section 2(1)(d) of the Consumer
Protection Act and whether such compensation can be granted to a person who hires to avail
the services as well. It also enumerated the grounds of medical negligence required to claim
compensation by the consumer.

Statutory and Constitutional Provisions Discussed: The Consumer Protection Act of 1986
(hereafter referred to as ‘the Act). Sections 2(1)(d) and 14 of the Act.

Facts:

The complaint petition was filed before the National Consumer Disputes Redressal
Commission by Harjot Ahluwalia (who is a minor), through his parents Mrs. Harpreet
Ahluwalia and Mr. Kamaljit Singh Ahluwalia. The petition alleged that the minor was brought
to M/s. Spring Meadows Hospital on 24th December 1993 as there was no improvement in
the condition of his health where he was admitted earlier. The senior consultant upon
examining the patient diagnosed him with typhoid and prescribed medicines for the treatment.
On one such incident on 30th December 1993, Miss Bina Matthew, a nurse of the hospital
instructed the father of the patient to get the injection ‘In Lariago’, which was intended to be
administered to the patient intravenously. Upon the purchase of the injection, the same was
injected to the patient by the nurse. The patient upon receiving the injection immediately
collapsed, following which a resident doctor, Dr. Dhananjay, was called for help. The doctor
assessed the patient and stated that he had suffered a cardiac arrest and tried to revive the
patient by manually pumping his chest. The patient thereafter was kept under a manual
respirator. Despite being placed under the manual ventilator and the necessary blood
transfusion having taken place, the minor patient showed no signs of improvement.
Subsequently, the hospital authorities informed the parents to shift the patient to a hospital
with an ICU and an auto-respirator. Thereafter, the patient was brought to AIIMS on 3rd
January 1994 and the doctors after examination stated that the patient was critical and would
only survive in a vegetative state as irreparable damage had been caused to his brain and there

41
were no chances of a possible revival of the damaged parts. Accordingly, he was discharged
from AIIMS on 24th January 1994 as no significant improvement could be made to the
patient’s condition. The M/S Meadows Hospital offered to re-admit the patient to do whatever
was possible to stabilize the condition of the patient and he was thus, admitted again. The
complainant alleged that it was due to medical negligence that the patient suffered irreparable
damage and could only survive in a vegetative state. Thus, a compensation of Rs. 28 Lakhs
was claimed. The Commission came to the conclusion that the child had suffered from cardiac
arrest due to the intravenous injection of lariago of high dose and there was medical
negligence on part of the hospital authorities. Accordingly, the Commission awarded the
compensation of Rs. 12.5 Lakhs to the minor patient. It also awarded Rs. 5 Lakhs as
compensation to the parents of the minor child for the mental agony endured due to their only
son surviving in a vegetative state requiring lifelong attention and care. The Commission also
made the insurance company liable to indemnify the amount of Rs.12,37,500 in terms of the
policy on account of the liability of the hospital as the case was fully covered under the
indemnity clause. Thus, the following appeals to the Supreme Court arose due to the order
passed by the National Consumer Disputes Redressal Commission, New Delhi on 16th June
1997. The appellants in the two appeals are the Hospital and the insurance company.

Issues:

Can the parents of the child claim compensation under the provisions of The Consumer
Protection Act?

Does Section 14 of the Act vest power in the Commission to grant compensation to the parents
of the child for the mental agony endured?

Can the parents of the child be construed as ‘consumers’ under Section 2 (1)(d) of The Act.

If the parents and child fall under the purview of Section 2 (1)(d) of the Act, can the
compensation be awarded to the beneficiary of the services rendered, that is the child in the
present case or are both the consumers eligible for the compensation?

Arguments:

Arguments put forth by the petitioner:

The counsel appearing on behalf of the hospital contended the complainant being a minor
child can be the only one construed as ‘consumer’ and the parents of the minor child cannot

42
claim compensation under the Consumer Protection Act for the mental agony they have
suffered.

It was contended that the compensation of Rs. 5 Lakhs granted to the parents of the minor
child was beyond the competence of the Commission.

It was contended that as per the provisions of Section 12 (1)(a) of the Act, only the consumer
to whom services has been provided can make a complaint. The patient in this case being
provided the services becomes a consumer and hence, no compensation can be awarded in
favour of the parents.

It was contended that under the provision of Section 14 clause (d) of the Act, the Commission
cannot be enabled to grant an award of compensation to both the parents and the child. It can
only grant compensation to the minor child who has suffered injuries and not the parents.

It was contended that the hospital authorities had displayed humanitarian approach by re-
admitting the patient without charging any money after being discharged from AIIMS and
thus, in such a situation an award of damages for mental agony to the parents is wholly
unjustified.

It was lastly contended that under Section 14 (1)(d) of the Act, the Commission would be
entitled to pay the compensation for any loss or damage suffered by the consumer.

The counsel on behalf of the insurer, contended that the insurer is not liable to indemnify the
hospital as the hospital had employed incompetent people to treat the patients and the direction
of the Commission that the insurer should indemnify the insured is ‘unsustainable in law’.

Judgment:

Pertaining to the contention of the insurer, the court stated that it was not open to entertaining
the consideration as the notice issued by this court deals only with the legality of the award of
compensation granted to the parents of the minor child.

The court in the case acknowledged the difficulty posed while raising action of medical
negligence and stated that there are practical difficulties in linking the injury to the medical
treatment accompanied by the difficulty in establishing the standard of care in medical
negligence of which a complaint can be made. The court further stated that “In a claim for
compensation arising out of medical negligence, a plea of bonafide mistake under certain
circumstances may be excusable but a mistake which would tantamount to negligence cannot
be pardoned”. This means that the court can accept the former case owing to human fallibility

43
in order to exempt the defendant from liability. However, in the latter case, the conduct of the
defendant if gone beyond the bounds of what is expected of the reasonable skill of a competent
doctor will not be pardoned.

Further, it was held that gross medical mistake will always result in a finding of negligence
and that usage of the wrong drug or wrong gas during the course of anesthetic would be
sufficient to impose liability and in certain cases, the principle of ‘Res Ipsa loquitur’ (a
principle that the mere occurrence of some types of accidents is sufficient to imply negligence)
can also be applied. A delegation of responsibilities to another could also amount to
negligence in certain cases.

The court in order to answer the question of whether the parents of the minor child fall within
the definition of ‘consumer under Section 2 (1)(d) of the Act, analyzed clause (ii) of the section
and stated that the clause being broad enough, a ‘consumer’ “would include not only the
person who hires the services but also the beneficiary of such services which beneficiary is
other than the person who hires the services.” Thus, the parents of the minor child and the
child would be ‘consumers’ within the meaning of Section 2(1)(d) of the Act and can claim
compensation in the present case.

The court while answering the question of whether the Commission can grant compensation
to the parents of the minor child rejected the contention of the petitioner and stated that the
parents of the child having hired the services of the hospital and the child is the beneficiary of
such services fall within the meaning of Section 2(1)(d) of the Act. Thus, the Commission
would be fully justified in awarding compensation under Section 14 clause (d), to both the
parents and the child for the injury sustained by them. It further stated that such compensation
was awarded to the parents of the minor child for their acute mental agony and the life-long
care and attention they would have to bestow on the child. Thus, the court saw no infirmity in
the order of the Commission and upheld its decision to award compensation to the parents, in
addition to the compensation in favor of the minor child.

The court rejected the contention of the appellant and stated that the mental agony endured by
the parent by seeing their only child in a vegetative state on account of medical negligence
cannot be palliated by the ‘humanitarian approach’ of the Hospital and such approach can’t
be considered to be a factor in denying the compensation for mental agony suffered by the
parents.

44
The contentions raised by the counsel appearing for the appellants having failed, the appeal
failed and was hence, dismissed. Thus, both the appeals were dismissed with costs of Rs.
5000.

Conclusion:

Thus, the court through this case defined the scope of Section 2(1)(d) of the Act and further
ascertained that the Commission would be entitled to award compensation under Section 14
clause (d) of the Act, to a consumer, for any loss or injury suffered by them, due to the
negligence of the opposite party.

CASE NO.:3

Indian Medical Association v VP Shantha

In 1995, the Supreme Court delivered a historic decision in case of In 1995, the Supreme
Court delivered a historic decision in the case of Indian Medical Association v VP Shantha
which brought the medical profession within the ambit of a ‘service’ as defined in Section
2(1)(o) of the Consumer Protection Act, 1986 and clarified the earlier decisions.

Facts

There had been an increase in cases of medical negligence by doctors but a lot of ambiguity
in relation to whether the medical services were in fact medical services and came under
COPRA 1986.

It was also ambiguous whether a hospital, a doctor or a medical practitioner came under
COPRA 1986.

Due to no availability of a unanimous and clear cut decision, a lot of Special leave Petitions
and Appeals were filed in the Supreme court. A PIL, a writ was filed under section 32 of the
Constitution of India to ascertain a proper decision relating to the question raised.

The arguments that were raised by the respondent were:

1. The first argument was that COPRA deals with occupational services and the medical
profession being a professional service should not be covered in this act.

2. Section(1)(g) contains a certain basis on which services can be held to be deficient. But
as the basis is limited, these have less application in medical service.

45
 3. Medical services are contract of personal services which are not a part of Section(1)(o)
and thus are a part of exclusionary services.

4. Service does not include medical service and is thus not in the purview of the Act.

All the arguments were rejected by the supreme court through the respective reasoning.

5. A medical practitioner should be held liable for negligence when they are negligent and
to find out that, Bolam Test insufficient.

6. section 14 (1) (d) includes that the court may award compensation on the basis of the
damage suffered by the negligence of the opposite party.

7. There is no master-servant relationship between doctor and patient and thus it will not
result in a contract of service.

8. The “inclusionary part” of the definition of service is wider in scope and includes medical
services.

In the second issue of the case, three broad categories were laid:

– Services rendered free of charge to everybody, Charges paid by all users, Charges are
required to be paid by all person except those, who cannot afford.

To this, the court said that free services do not form services, and the people who pay the full
amount come under the Act and be considered as services.

To the third issue, the court said that the people in the third category who are paying, pay for
the non-paying patients too. Thus they become a beneficiary and so come under the scope of
the act and are treated as consumers.

Issues before the Court

Whether the services of a medical practitioner can be considered as ‘services’ under Consumer
Protection Act, 1986?

Whether hospitals and doctors come in the ambit of the Consumer Protection Act, 1986?

Ratio Decidendi

NCDRC’s order decreed that the doctor–patient relationship is a contract for personal service
and it is not a master-servant relationship. A doctor is an independent contractor and the
doctor, like the servant, is hired to perform a specific task. However, the master or principal
(the hirer) is allowed to direct only what is to be done, and done, and when. The ‘how’ is left

46
up to the specific discretion of the independent contractor (doctor). So, the doctor-patient
relationship is a contract for personal service and as such, cannot be excluded from Consumer
Protection Act.

The deficiency in service means only negligence in a medical negligence case and it would
be determined under Consumer Protection Act, by applying the same test as is applied in an
action for damages for negligence in a civil court.

Judgement

The medical profession has been brought under the Section 2(1) (o) of CPA, 1986, and also,
it has included the following categories of doctors/hospitals under this Section:

All medical/dental practitioners doing independent medical/dental practice unless rendering

only free service.

Private hospitals charging all patients.

All hospitals having free as well as paying patients and all the paying and free category
patients receiving treatment in such hospitals.

Medical/dental practitioners and hospitals are paid by an insurance firm for the treatment of a
client or employment for that of an employee.

It excuses only those hospitals and the medical/dental practitioners of such hospitals which
offer free service to all patients.

As a consequence of this judgment, effectively all private and government hospitals and the
doctors employed by them and the independent medical/dental practitioners except primary
health centers, birth control measures, anti-malaria drive, and other such welfare activities can
be charged under the Consumer Protection Act, 1986.

Conclusion

This landmark decision brought in a significant interpretation of medical negligence liability,

by subjecting the medical profession to the Consumer Protection Act. Patients’ rights were
recognized through the conferring of consumer status, allowing them to file complaints in
cases of deficiency in rendering medical services.

However, this decision has received criticism from the community of medical practitioners
for making the medical profession vulnerable to excessive suits, many of which are filed to
harass doctors or to evade the payment of medical bills. While it is important to protect the

47
integrity of this profession, the growing cases of medical negligence are a matter of concern.
The interpretation of ‘service’ by the Supreme Court seeks to safeguards the interest and
welfare of patients, which is paramount.

CASE NO.:4

Mukesh Kumar And Anr v. State of Uttarakhand And Ors. (2020)

It is intended to realize the promise of equality and social justice enshrined under various
Articles of the Indian constitution such as Article 14, 38, 39 and 46. However, the benefits of
reservations have increasingly accrued to the better-off and the more educated among the SCs
and STs. This case deals with reservation policy with respect to promotion in the office of the
state. The Hon’ble apex court took into consideration other cases with the same issue to once
again clarify the doubts regarding reservation in promotion to public posts.

II. Facts

The state government of Uttarakhand on 5th September 2012 made a decision that all posts in
public services in the state shall be filled up without providing any reservations to Scheduled
Castes and Scheduled Tribes in promotions for the posts of Assistant Engineer (Civil) in the
Public Works Department, Government of Uttarakhand.

A petition was filed before the High Court which struck down the proceeding made by the
state government. However, the Hight Court realized flaws in its judgment on the review and
modified that the State was obligated to collect quantifiable data regarding the inadequacy of
representation of the Scheduled Castes and Scheduled Tribes in public services and directed
the state government to decide based on the data.

The Hon’ble Supreme Court included a group of appeals with the same subject matter and
decided to dispose of them altogether.

III. Issue

Whether the state government is bound to give reservations to the Scheduled Caste and
Scheduled tribes?

• Is it applicable to reservation for those classes in promotion also?

• Whether the right to claim reservation is a fundamental right?

48
 • basis of quantifiable data relating to the adequacy of representation?

IV. Judgment

The Hon’ble Apex court held that the state government is not bound to make a reservation for
Scheduled Caste and Scheduled tribes promotion to public appointment or posts.

• No fundamental right can be claimed for reservation in promotions and no mandamus

can be issued for the same.

• There is no fundamental right which inheres in an individual to claim reservation in

promotions.

• The data collected by the State government is only to justify to provide reservation to
those classes of people and not otherwise.

• Not being bound to provide reservations in promotions, the State is not required to
justify its decision on the basis of quantifiable data, showing that there is an adequate
representation of members of the Scheduled Castes and Scheduled Tribes in State
services.

• It also set aside the direction given by the High Court on 15.07.2019 that all future
vacancies that are to be filled up by promotion in the posts of Assistant Engineer
should only be from the members of Scheduled Castes and Scheduled Tribes as it is
wholly unjustified.

V. Rationale

Article 16 (4) and 16(4-A) are in the nature of enabling provisions, vesting a discretion on the
State Government to consider providing reservations, if the circumstances so warrant. It is
settled law that the State Government cannot be directed to provide reservations for
appointment in public posts. The Apex court relied upon its judgments in Ajit Singh (II) v.
State of Punjab, (1999) 7 SCC 209 and C.A. Rajendran v. Union of India, (1968) 1 SCR 721
to come to the above conclusion respectively.

The collection of quantifiable data showing inadequacy or adequacy of representation of

Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing
reservations in promotions, which was supported by its earlier ruling in M. Nagaraj & Others
v Union Of India & Others (2006) 8 SCC 212 and Indra Sawhney v. Union of India & Ors.
(1992) Supp.3 SCC 217

49
The state government relied on the judgment of the High Court of Uttarakhand in Vinod
Prakash Nautiyal & Others v. State of Uttarakhand & Others W.P. (S/B) No.45 of 2011 by
which Section 3(7) of the 1994 Act, relating to the provision of reservation in promotion was
struck down.

Even if the under-representation of Scheduled Castes and Schedules Tribes in public services
is brought to the notice of this Court, no mandamus can be issued by this Court to the State
Government to provide reservation in light of the law laid down by the Court in Suresh Chand
Gautam v. State of U.P. (2016) 11 SCC 113

The collection of data regarding the inadequate representation of members of the said class is
a prerequisite for providing reservations and is not required when the State Government has
decided not to provide reservations.

VI. Importance of the Case

The Judgment, in this case, highlighted that Art.16 (4) and Art.16(4-A) of the constitution are
just enabling provisions. The State Government is not bound to make reservations and also
the courts have no authority to compel the state government to do so.

The State can allow reservation “if in the opinion of the State they are not adequately
represented in the services of the State”. It is the discretion of the State Government to decide
whether reservations are required in the matter of appointment and promotions to public posts.

It also made clear that there is no fundamental right for any individual to claim reservation in
promotions.

The collection of data regarding the inadequate representation of members of such class is a
prerequisite only for providing reservations. When its decision is being challenged, it has to
then justify it by providing the data.

50
CHAPTER IV

APPRAISAL AND SUGGESTION

It is high time for the Indian nurses to raise the national and state level agenda for the
amendment and revision in the existing Indian Nursing Council act and state nursing council
acts. The amendments should include the provision of registration for the nurse specialists
and nurse practitioners, defining the scope of practices separately for the Registered Nurses,
Registered Midwives, Advanced Nurse Specialists and Nurse Practitioners. It also should
have the provision of limited registration, non-practicing registration and endorsement. The
amended acts must also specify the titles and licenses required for the general registered
nurses and specialist nurses and nurse practitioners, have a provision of the general nurses,
specialist nurses and nurse practitioners’ title and practice pro tection, specify the
obligations of registered nurses and specialist nurses and nurse practitioners, prescribe

the legal proceedings or disciplinary actions deemed fit against offences, professional
misconduct of nurses and also mentions the powers of nursing councils to regulate the
nursing practices.

The Nursing Practice Act is the need of the hour for the Indian nurses, which could be
achieved by making necessary amendments in existing Indian Nursing Council Act and / or
State Nursing Council Act. Primarily, on lines of Medical Council of India (MCI), INC Act
1947 may be amended, which could be later uniformly adapted in all the state to ensure
uniformity of nursing practice act throughout India. The amended acts must have the
provision for the registration of the nurse specialist and independent nurse practitioners;
specify the separate titles for the general nurses, midwives, specialist nurses and nurse
practitioners, define the scope of practices for nurses registered with different titles and
prescription about the legal and disciplinary proceeding against professional misconduct of
nurses. Furthermore, it is suggested that Indian Nursing Council may also factor the
provision of national licensing examination for the nurses before they obtain the license to
practice as Registered Nurse or Midwife.

The nursing education has undergone rapid development in recent past. Today country has
nurses qualified with postgraduate specialty and super-specialty nursing degrees. Moreover,
recently Indian Nursing Council has developed the curriculum for nurse practitioners course
in critical care nursing and nurse practitioner in primary health care to in dependently

51
manage the patients in remote communities as well as the critical care units with limited
prescribing rights. However, our existing Indian Nursing Council Act 1947 as well as state
nursing and midwifery council acts are limited in power to manage the routine functions of
nursing council, prescribe nursing curriculum, develop nursing educational standards,
granting the approval for the nursing educational institutes to run the nursing courses or
withdraw the approval for institutes which did not meet the prescribed standards.

In addition, state nursing acts also empower the respective state nursing council to conduct
examinations for the ANMs, GNMs and Post Basic diploma courses and register the
qualified persons to practice as nurse and/ or midwife and protect the title of nurses and
midwives so that none other than a duly regis tered person can use the title as nurse or
midwife and practice as nurse or midwife in particular state.

Surprisingly, many nurses are not even aware of the NPA as a Law, and unknowingly
violate aspects of this statute (NCSBN, 2011b). This is an unfortunate lapse because these
administrative rules and regulations answer crucial questions that nurses have about the day-
to-day aspects of practice and unusual occurrences. The laws of the nursing profession can
only function properly if nurses know the current laws governing practice in their state.
Ignorance of the law is never an excuse

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ANNEXURE-I

REFERENCES (BIBLIOGRAPHY)
Some websites :-

• https://blog.ipleaders.in

• www.indian kanoon.com

• www.lawoctopus.com

• www.casemine.com

• www.legalserviceindia.com

• www.indialegallive.com

• https//www:legistify.com

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