Patient-tailored personal treatment services against consideration is a Contract For Personal Services

Introduction

Judicial interpretation of the vague language of Section 2(1)(o) of the Consumer Protection Act, 1986 in the V. P. Shantha case led to the inclusion of Health Care and Medical Services as part of the services named in the inclusory portion of the section, thereby bringing them under the ambit of the CPA.

The exclusory portion was not interpreted to apply to medical services, as it was deemed to be not a ‘contract of personal service’ but a ‘contract for personal service’. The reasoned discussion below demonstrates that this interpretation was flawed when considering the intricate details of the practice of modern medicine.

Despite several amendments to the section over the years, including those introduced in the Consumer Protection Bills of 2018 and 2019, the interpretation still holds under the Consumer Protection Act, 2019, on the grounds that the basic language of Section 2(42) remains unchanged.

Relevant Legal Provisions

Section 2(1)(o) of the Consumer Protection Act, 1986:

“Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Section 2(42) of the Consumer Protection Act, 2019:

“Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
*telecom was added by subsequent amendments.

Note: Health Care was included in the Section of the 2018 Consumer Protection Bill and was excluded by amendment in the 2019 Bill after parliamentary debate.

Discussion with Inputs from AI

What is personal service? Does it require an employee-employer contract to qualify?

AI:

Personal service refers to a contract where one party agrees to perform services that rely heavily on their unique skills, expertise, or personal qualities. It doesn’t necessarily require a formal employer-employee relationship, but it often involves a close, direct relationship between the parties involved.

What is Personal Service?

• A personal service contract is an agreement where the quality and execution of the work are intrinsically tied to the individual or entity providing the service.
• It emphasizes the individual’s unique skills, talents, or expertise, rather than simply the completion of a task.
• Examples include contracts with consultants, artists, athletes, or professionals like lawyers and doctors.

Does it require an employee-employer contract?

AI:

No, a personal service contract doesn’t inherently require a formal employer-employee relationship.

While it can exist within an employment context (e.g., a contract for a specific role within a company), it can also exist independently.

For example, a freelance artist hired to paint a mural on a building is providing personal service, even if they are not an employee of the building owner.

Key characteristics of personal service contracts:

• Reliance on individual skill: The service provider’s unique abilities are central to the agreement.
• Close relationship: There’s often a direct and personal connection between the parties involved.
• Specific work: The contract clearly defines the scope of the work to be performed.
• Confidentiality and non-compete: These are common clauses in personal service contracts to protect the client’s interests.

In contrast to a “contract for service”:

• A “contract for service” (often an employer-employee relationship) involves the employer having control and direction over the work.
• In a personal service contract, the individual providing the service retains more autonomy and control over how the work is done.

In conclusion:

Personal service contracts are a broad category that can encompass various situations. While they are often associated with a close working relationship, they don’t necessarily require a formal employer-employee setup.

What have to be the specific attributes of a medical service for it to be personal service?

AI:

For a medical service to be considered a personal service, it should prioritize individual patient needs and experiences, emphasizing aspects like empathy, communication, and tailored care. This involves understanding the patient’s unique circumstances, preferences, and values, and providing care that is both effective and respectful of their individuality.

Here’s a breakdown of specific attributes:

Patient-Centered Approach

• Individualized Care: Tailored to the specific needs of each patient, considering their medical history, preferences, and values.
• Holistic Perspective: Recognizing the patient as a whole person, addressing physical, emotional, and social well-being.

Empathy and Compassion

• Understanding and Sharing Feelings: Creating a safe and supportive environment.
• Respectful Treatment: Treating patients with respect, dignity, and kindness.

Effective Communication

• Clear and Concise Explanations: Communicated in patient-friendly language, avoiding jargon.
• Active Listening: Demonstrating attentiveness to concerns, questions, and feedback.

Building Trust and Rapport

• Open and Honest Communication: Transparent and trustworthy dialogue.
• Confidentiality: Essential for fostering trust and safety.

Cultural Sensitivity

• Respecting Diverse Beliefs: Awareness of cultural and religious values.
• Language Accessibility: Providing communication in the patient’s language or via translation services.

Continuity of Care

• Coordination of Services: Ensuring smooth transitions, e.g., from hospital to home.
• Follow-up Care: Monitoring progress and addressing ongoing needs.

By focusing on these attributes, medical services can move beyond a transactional approach and deliver truly personalized care that enhances patient experience and health outcomes.

Is a surgical procedure tailored to the particular medical needs and desire of the patient by her chosen surgeon, a personal service?

AI:

Yes, a surgical procedure tailored to a patient’s specific medical needs and desires, especially when chosen by their surgeon, can be considered a personal service. This is because it involves customizing treatment beyond a standardized approach.

Here’s why:

• Individualized Care: Considering the patient’s unique anatomy, history, and desired outcomes.
• Shared Decision-Making: Surgeon and patient collaborate to determine the best course of action.
• Holistic Approach: Incorporating psychological and cognitive characteristics.
• Enhanced Patient Experience: Fosters satisfaction and engagement.
• Avoiding Paternalism: Respects patient autonomy and informed decision-making.

While surgical procedures are medical interventions, tailoring them to individual patients reflects a shift toward personalized, patient-centered care — a form of personal service.

An informed consent for medical procedure is treated as a contract — is it not a personal service contract?

AI:

While informed consent for a medical procedure has contractual elements, it is not typically treated as a personal service contract in the conventional business sense. It’s more accurately described as a therapeutic agreement establishing a legal relationship with mutual rights and responsibilities.

Here’s why:

• Focus on Autonomy and Disclosure: Ensures understanding of risks, benefits, and alternatives.
• Therapeutic Relationship: The goal is patient health improvement, not just contractual fulfillment.
• Not a Commercial Transaction: Does not involve typical contract-for-hire dynamics.
• Legal Ramifications: Emphasis is on negligence or lack of informed consent, not breach of contract.
• Varying Legal Interpretations: While some frameworks apply contract principles, focus remains on autonomy and safety.
• Shared Decision-Making: Emphasizes collaboration between patient and provider.

In essence, informed consent is a legal and ethical mandate rather than a conventional personal service contract.

While you have agreed that a surgical procedure tailored to the individual patient’s specific needs is a personal service, is it not a contract for personal service?

AI:

Yes, a contract for a surgical procedure tailored to an individual patient’s needs, with consideration exchanged, is indeed a personal service contract.

The agreement to perform such a customized and paid procedure creates a contractual obligation. It fits the definition of a personal service contract where the provider’s unique expertise is engaged for a specific task — in this case, surgery.

Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS (Anatomy), MS (Surgery)
Email: [email protected], Ph no: 8003516198