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GOVERNMENT OF KERALA
ABSTRACT
Health & Family Welfare Department - Judgment in Writ Petition (C) No.36941 of 2010, 25274 and 25387
of 2011 - Complied -Orders Issued
---------------------------------------------------------------------------------------------------------------------------------------------------HEALTH AND FAMILY WELFARE (K) DEPARTMENT
GO(Rt)No. 1958/2012/H&FWD
13.06.2012
Dated, Thiruvananthapuram:
---------------------------------------------------------------------------------------------------------------------------------------------------Read:
1) Representation dated nil from Kerala State Physiotherapy Co-ordination Committee
2) Judgment dated: 09.06.2011 of the Hon’ble High Court of Kerala in Writ Petition (C) No.36941
of
2010 filed by General Secretary, Kerala State Physiotherapists Co-ordination State
Executive
Committee, Chithira, Azhoor, Pathanamthitta
and
3) Representation dated 10.08.11 of the President, Indian Association of Physical Medicine
Rehabilitation - Kerala Chapter, Sanjeevani, Church Road, Chovva, Kannur
4) Representation No. IMAKSB/SS/HQ/596/2010-11 dated 01.09.2011 of the State President,
Indian
Medical Association - Kerala State Branch, IMA State Headquarters, Anyara,
Thiruvananthapuram
5) Judgment dated: 28.09.2011 of the Hon’ble High Court of Kerala in Writ Petition (C) No.25274
25387 of 2011 filed by the President, Indian Association of Physical Medicine and Rehabilitation Kerala Chapter, Sanjeevani, Church Road, Chovva, Kannur and the Secretary, Indian
Medical
Association
Kerala
State
Branch,
IMA
State
Headquarters,
Anyara,
Thiruvananthapuram
respectively
and
6) Interim Order dated: 12.04.2012 of the Hon'ble High Court of Kerala in IA No.5321 of 2012 in
WP (C) No.36941 of 2010
ORDER
In March 2010, Kerala State Physiotherapy Co-ordination Committee submitted representation,
read as first paper above, to Government raising various demands including formation of
Physiotherapy Council. While the representation was under consideration of the Government, in
December 2010, the organisation filed writ petition (WP (C) no. 36941 of 2010) before the Hon'ble
High Court of Kerala. The Hon’ble Court, as per paper read as second paper above, disposed the
writ petition with a direction to Government to dispose the representation submitted by the
organization to Government (i.e Exhibit P1 in the said writ petition) and pass appropriate orders in
accordance with law after notice to the petitioner, within a period of five months from the date of
receipt of a copy of the judgment. In the meanwhile, the President, Indian Association of Physical
Medicine and Rehabilitation - Kerala Chapter and the State President, Indian Medical Association Kerala State Branch submitted representation to Government vide papers read above as third and
fourth raising various demands including not to form Physiotherapy Council. Latter two
organisations also filed writ petition (W.P. (C) Nos. 25274 and 25387 of 2011) and the Hon’ble
Court as per paper read as fifth above directed Government to hear the petitioners in W.P. (C)
Nos. 25274 and 25387 of 2011 also before taking a decision on Ext.P1 (i.e., the representation
filed by the Kerala Association for Physiotherapists Co-ordination State Executive Committee).
2. Copy of the judgment read as second paper above was received in Government on
14.07.2011 and therefore the last date for complying the Court direction was 14.12.2011. Since
Government required more time to arrive at a decision on Exhibit P1, more time to comply
judgment read as second paper above was sought and the Hon'ble Court as per paper read as
sixth paper above granted extension up to 16.06.2012.
3. In compliance with the direction of the Hon'ble Court in aforesaid writ petitions a hearing in
the matter was conducted on 30.11.2011 by the then Joint Secretary to Government, Health and
Family Welfare Department. Shri R Gopakumar, Shri Deepu S Chandran, Shri Suhas K and Shri
Sreejith M Namboothiri represented Kerala Association for Physiotherapists Co-ordination State
Executive Committee. Dr.Jayakrishnan. A.V, represented Indian Medical Association and Dr.
N.George Joseph represented Indian Association of Physical Medicine and Rehabilitation, Kerala
Chapter. Besides Adv.Anil K.G. was also present on behalf of the latter two organizations. Dr. V.
Geetha, Director of Medical Education, Dr. Prabhachandran Nair, Deputy Director of Health
Services (PMR), and Dr. Ashaletha.G., Joint Director of Medical Education were also present
during the hearing.
4. The petitioner in W.P. (C) No. 36941/2010 has contended as follows: i) Physiotherapists are undergoing a study period of 4½ years for achieving a bachelor’s degree.
Most of them are having a post graduation in different specialties like Orthopedics, Neurology,
Paediatrics, Gynecology, Sports, Physiotherapy etc…Therefore, they are competent enough to
examine and treat patients for lifestyle diseases, mechanical disorders, over use syndromes,
movement dysfunctions, sports injuries and the like.
ii) In almost all the developed countries like Australia, Canada, U.K., New Zealand etc.,
physiotherapists are the first contact practitioners and are having independent status. And
therefore, physiotherapists are playing a major role in the health care delivery of those countries.
iii) They claim themselves as Health Professionals and declare that they are included in the
category of Health Professionals by ISCO (International Standard Classification of
Occupations). Also they claim that physiotherapists are considered to be independent practitioners
in all the states of the country.
iv) The following are the four independent councils for physiotherapy existing in our country.
a.
Delhi Council for Physiotherapy and Occupational Therapy.
b.
Gujarat Council for physiotherapy
c.
Maharashtra Council for physiotherapy
d.
Rajasthan Council for physiotherapy
v) In the State of Madhya Pradesh, the physiotherapists have the legal entity to practice
independently.
vi) Physiotherapy is involved in the preventive, curative, restorative and rehabilitative branches of
the modern medical concept. Though the Physical Medicine and Rehabilitation Department was
started in 1972 in Govt. Medical College, the Physiotherapy section had been functioning there
since 1960.
vii) In Kerala, physiotherapy cannot be strictly stated as a part of modern medicine. Instead, it is
associated with the other systems of medicine viz Ayurveda and Homeopathy.
viii) Physiotherapists are treating without using drugs and their evaluation is solely based on
physical diagnosis. Thus their independent practice will help, in a way to minimize the rate of
diseases due to over usage of drugs. Also it will help to reduce the expenses in this regard. Even
surgeries can also be avoided by proper application of physiotherapy.
ix) Physiotherapists are giving home service to patients who are immobile and aged. In most
cases, this will be a long term procedure. If independent status is denied to the physiotherapists, it
will turn to be a violation of Disability Act.
x) It is reported that around 60,000 persons were fractured in road accidents in the previous
year. In order to provide proper and continuous treatment to these patients, Physiotherapists need
independent status. Thus, physiotherapists are competent to both diagnose and differential
diagnose.
xi) Physiotherapists have determining role in sports medicine as well as health tourism.
xii) There should be a reasonable proportion between patient and physiotherapist. About 80% of
the persons admitted in the Neurology and Orthopedic Departments require the service of
physiotherapists. But only 10% of them are being referred for the physiotherapy treatment.
xiii) If physiotherapy is included under paramedical council, the modern physiotherapist loses his
opportunity to use his skill and knowledge for the treatment of the patient. And thus the patients are
denied of getting the benefit of proper physiotherapy treatment. This will also result in curtailing the
normal graph of progress to be achieved in future. Finally, physiotherapists will have to remain as
technicians for ever.
xiv) New course have to be created afresh in the Department considering the higher qualification
level of the modern physiotherapy.
xv) Legal steps have to be taken to ban the practice of those who are not eligible and qualified for
the purpose.
xvi) Steps may be taken for excluding physiotherapists from the category of paramedical
technicians published in the website of the paramedical council. Physiotherapy is not included
under the purview of paramedical council hitherto.
xvii)
UGC norms should be followed in the appointment of teachers of physiotherapy courses.
xviii)
Physiotherapists have both supplementary and complementary role in medical
practice. Therefore, the service conditions of physiotherapists may be regularized in legal terms
considering all the facts explained above.
xix) Physiotherapy is a branch of modern medical science, which includes examination,
assessment, interpretation, physical diagnosis, planning, execution of treatment and advice to any
person for the purpose of preventing, correcting, alleviating and limiting dysfunction.
5. The petitioners in W.P. (C) No. 25274 & 25387/2011 have together raised their arguments
against the points highlighted by the representatives of Kerala Association for Physiotherapists Coordination State Executive Committee. Their main contentions are as follows: i. It is improper for any person to enter into the field of treatment of Modern Medicine without
registration with the Medical Council of India as per the Indian Medical Council Act, 1956. A
person cannot be allowed to treat the patient merely because Anatomy and Physiology are
included in a curriculum of a course. Also the basic qualification of MBBS is a pre-condition for a
candidate for being registered in the medical register.
ii. Unless and until the qualification of physiotherapy is recognized by the Medical Council of
India as medical qualification, physiotherapists will not have any right to practice modern medicine
and treat patients.
iii. The Supreme Court of India has clearly ruled in a judgment that only a person having a
recognized qualification of the Medical Council of India and holds the registration alone can
practice modern scientific medicine and physiotherapists without holding the registration with the
Medical Council of India will not be able to treat patients for their ailment independently.
iv. Physiotherapy is not a recognized system of medicine in India and physiotherapy is not a
qualification recognized by the Medical Council of India. Physiotherapists are also not entitled to
diagnose, prescribe or decide treatment for any ailment. Physiotherapy can only be a modality of
treatment of modern medicine used in its various specialties. Therefore, physiotherapists are not
legally entitled for an independent council.
v. The only independent councils of Medicine in India are the Indian Medical Council under the
Indian Medical Council Act for modern medicine, Indian Medicine Central Council for the Indian
System of medicine and the Homeopathy Central Council for the Homeopathic system of
medicine. The Dental Council is only an extension of the Indian Medical Council, for the branch of
Dentistry. The Pharmacy Council and the Nursing Council are only Paramedical Councils. They are
also called Allied Health Professionals. Therefore, the claim of the Physiotherapists for an
independent council can never be entertained. If independent status is allowed for
physiotherapists, the existing system in the Kerala Health Service will be uprooted.
vi. The categorization of physiotherapists as Allied Health Professionals (Para medicals) in India
is detailed in the report of the W.H.O.
vii. The executive committee of the Medical Council of India held on 28.08.2008, has specifically
decided that physiotherapy is neither a separate system of medicine nor a qualification to practice
modern medicine and hence physiotherapists can only administer medically directed therapies to
patients.
viii. In the States of Madhya Pradesh and Himachal Pradesh, a paramedical council is constituted
by including physiotherapists in the Paramedical Council Bill and the Paramedical Council Act
respectively. These Councils consist of Director of Medical Education and Director of Health
Services along with various Heads of Departments of the specialties of modern medicine, and
includes physiotherapists with other Allied Health Professionals.
ix. When the psychologists under Kerala Government Health Services claimed right to
independent practice and asked to be allowed to run independent outpatient clinics in the
Government hospitals, the Government of Kerala had rejected their claim as one not legally
permissible, vide order number G.O.(Rt) 4148/2008/H&FWD dated 12.12.2008.
x. While framing laws and regulations for physiotherapists in India, foreign laws in other countries
cannot be blindly absorbed because the structure of medical education and the laws relating to the
practice of medicine in India are different from other countries.
xi. Even in countries where physiotherapy is having high standardization, physiotherapists are
never granted equity with medical practitioners and are prohibited from diagnosing, prescribing and
deciding treatment. The violation of these laws provides strict punishment under the laws of the
respective countries.
xii. The Government of India, for regulating the profession of Modern Medicine, as contemplated
in the List-I under item 65 (a) and in List – III under item 26 of the Constitution of India vide
G.O.No.R/1405/25/96 dated 25-November, 2003, has fixed the existing systems of medicine in
India under the said provisions of the Constitution of India. The State of Kerala, for these reasons
will not be entitled to pass a legislation or confer any right for Physiotherapists, to diagnose
prescribe, or decide treatment for diseases or ailments, there by encroaching upon the definition of
Modern Medicine defined under the Indian Medical Council Act – 1956, or to consider
Physiotherapy as an independent system of medicine only for granting the said rights for
Physiotherapists. This principle of law was ruled by the Supreme Court of India in Dr. Preeti
Srivastava vs State of Madhya Pradesh.
xiii. The medical graduates and post graduates, throughout their medical studies, are placed on
high and tough standards to impart high degrees of diagnostic, prescriptive and treatment skills, to
give the health sector the maximum potential to serve the community.
xiv. There are no statutory regulations or laws governing physiotherapy courses in India, at
present. Whereas a MBBS student spends four and a half years for rigorous clinical training,
examining thousands of patients under the guidance of well experienced teachers in the various
specialties to acquire diagnosing, prescribing and treatment skills, the clinical exposure for
physiotherapy students is practically nil. Most of the physiotherapy colleges do not have adequate
hospital attachment. The physiotherapists are not equipped with the ability to diagnose or treat
various ailments other than carry out the physiotherapeutic measure as ordered by a medical
doctor after proper diagnostic and therapeutic considerations. There are definite indications and
contraindications for physiotherapy which can be decided by proper clinical examination supported
by relevant investigations. Administering physiotherapy without this understanding may result in
irreparable damage or even loss of life to the patient. There are many instances where such
complications have been reported.
xv. It will be highly illegal and unjust to place physiotherapy courses equal to that of medical
courses. Physiotherapy is not a medical stream of specialty and is only an Allied Health service
(paramedical) branch of modern medicine. Physiotherapy is not an independent system of
medicine recognized any where in the world.
xvi. Physiotherapists being only Allied Health Professionals (Paramedical), the council which
includes physiotherapists should be mandatorily headed by medical personnel and should have
representations from the specialities of Physical Medicine and Rehabilitation, Orthopedics,
Neurology, Paediatrics etc for the reason that these specialties use the modality of Physiotherapy
for the treatment of some diseases and ailments. An independent council consisting only of
physiotherapists without medical personnel cannot be allowed for physiotherapy, for the reason
that physiotherapy is not an independent system of medicine. A council for physiotherapy, without
medical personnel from the specialties which use physiotherapy as a mode of treatment will only
create chaos and confusion in the health sector by affecting the public health.
xvii. It will be only an unnecessary burden to the state exchequer, to create a separate paramedical
council for physiotherapists, when there is another Paramedical Council for all other Allied Health
Professionals (Paramedical). It will be only in the best interest of the state, the general public and
the Health sector, to include physiotherapists along with other Para medicals (allied Health
Professionals) in one Paramedical bill.
xviii.
“Physiotherapy means medically directed therapy through physical agents including
heat, cold, light, water, massage, electricity or manual exercise to persons, with the aim of
preventing or correcting any disability, disease or ailment”. “Physiotherapist means a
paramedical person who possesses recognized physiotherapy qualification”.
xix. The physiotherapy course structure includes only the basic sciences, some clinical aspects &
physiotherapeutic modalities based on Modern Medical Science and are offered in many
paramedical institutions and in some private hospitals having least clinical facilities. The training
given to them is to practice “physiotherapy” and to carry out physical modes of treatments
prescribed by the physician.
xx. Scope of clinical & non-clinical subjects taught to ‘physiotherapy’ students is only relevant to
the scope of imparting ‘physiotherapy’ education and not to the diagnostic and therapeutic aspects
of ailments. Nowhere in the world are the physiotherapists allowed to treat the patient
independently. Before coming to the treatment part, a patient has to be examined, his history has
to be evaluated, investigations to be carried out and diagnosis to be done precisely by a medical
practitioner.
xxi. Physiotherapy is a 60-70 years old paramedical discipline created to train the physiotherapy
technicians. These physiotherapy technicians were trained to assist Army Physicians (Doctors) to
treat war victims during and after the 2nd World War.
xxii. If the request to form a separate physiotherapy council is allowed, other paramedics like
Nurses, Pharmacists, Radiographers, Medical laboratory technologists and Speech therapists etc.
might also demand for independent council.
xxiii.
In spite of all the above contentions, they have also illustrated two instances where the
patients were died due to the interruption of the physiotherapists without any referral from doctors.
6. The Director of Medical Education, on behalf of the Department, has offered the following
specific remarks, on medical grounds:i. Any speciality may be considered as Medical when practiced by a Doctor holding an MBBS
degree / Post graduate degree. The Doctor is the person to decide and design the treatment and
what the patients should practice during his recovering period and subsequent period. But he
requires assistance from various angles to support his treatment regime. Such personnel who
assist and support a doctor are collectively grouped as paramedical staff. Here comes the case of
physiotherapy, who is a member of the rehabilitation team headed by a group of doctors. Hence
physiotherapists are paramedical personnel who are to perform medically directed and supervised
programme. In short, physiotherapy cannot be grouped as a medical speciality. The need and type
of physiotherapy can be decided by only an experienced team of specialists. So physiotherapists
should be registered under Paramedical Council like occupational therapist, speech therapist etc..
ii. The physiotherapist needs a registration in paramedical council as they cannot be included in
medical category. They are not the first contact person in diagnosis, treatment and prevention of
diseases which are to be done by doctors registered under Medical Council of India and
Travancore-Cochin Medical Council.
iii. The scope of clinical and non-clinical subject taught to physiotherapy students is only relevant
to the purpose of imparting physiotherapy education, which is but a very limited
knowledge. Though there was constant request from physiotherapists to include Pharmacology in
a detailed manner in their syllabus, the University of Kerala has not granted the demands till now,
as the same is not at all required for supportive therapy.
iv. The doctor-patient ratio in Kerala is 1:5388. Out of these only 20% of the patients require
rehabilitation intervention. There is no need for any strict patient-physiotherapist ratio as followed
in patient-nurse ratio. So, at present there is no urgent need to increase the number of posts.
Hence their demand for a separate council is unjustifiable. As long as they cannot be registered
under MCI or TCMC, they cannot be considered as part of medical branch. Their minimum
qualification may be fixed as degree as there are many colleges having this course. But none of
them function in the Government side.
7. The case was examined in detail as directed by the Hon’ble High Court and the points put
forth by the petitioners in both writ petitions along with the opinion of the Director of Medical
Education. For reasons listed below Government are of the view that almost all the contentions
raised by the petitioner of Ext.P1 (i.e. Kerala State Physiotherapists Co-ordination State Executive
Committee) are baseless, particularly in view of the definite report submitted by the Director of
Medical Education.
a)
At present the medical practitioners who have necessary qualifications prescribed in
Medical Council of India Act, 1956 are legally entitled for examination, diagnosis and making a
treatment plan of patients, where as the physiotherapists are functioning only as a supportive
group.
b)
The qualifications prescribed by the UGC in terms of appointment of teachers in
physiotherapy do not seem to be mandatory in the field of medical education in Kerala.
c)
The argument that the physiotherapists are undergoing a study period of four
and half years for getting Degree Certificate, is equally applicable in the case of B.Sc MLT
,B.Sc M.Pharm,
B.Sc Nursing and the like. That means,
the
Physiotherapy course is not unique, in terms of its duration or structure, as claimed by the
petitioners.
d)
Before moving for the formation of an independent council they have to establish it as
a separate system of medicine by achieving the recognition from the Medical Council of India.
e)
At present, physiotherapists are generally included in the category of Allied Health
Professionals both in India and abroad. In short it is a supportive group for the medical profession
and does not have an independent status. They are only adjutants for effective cure and recovery.
f)
The proposed Paramedical Council consists of Doctors belonging to different
specialities of modern medicine. On the contrary, the demand of the petitioner is to form an
exclusive council, consisting of physiotherapists alone. This demand could not be accepted, since
such a council is likely to have a biased and baseless approach in all the matters, including that of
therapy. Besides, there is every chance on their part to start practising and prescribing medicine,
on their own risk. And ultimately, this will create a competition and parallel generation of quacks,
which may adversely affect the public health of the state.
g)
Above all, if a separate council for physiotherapists is formed on the basis of the
present request, it is obvious that the other categories now included in the list of technicians under
the paramedical council, will also emerge with strong demand to constitute independent councils,
with justifications of their own; followed by legal and other dynamic interventions.
8. Government, therefore, taking into account of the facts and circumstances disclosed and
detailed above, declines the request of the petitioner in the P1 representation [W.P. (C) 36941/10].
The direction of the Hon'ble High Court in Writ Petition (C) No.36941 of 2010, 25274 and 25387 of
2011 are thus complied with.
(By Order of the Governor)
RAJEEV SADANANDAN
PRINCIPAL SECRETARY
To
The Advocate General - Kerala, Ernakulam (with C/L)
The General Secretary, Kerala State Physiotherapists Co-ordination State Executive Committee,
Plavilayil House, Enathu P O, Pathanamthitta, 691526 and
The General Secretary Kerala State Physiotherapists Co-ordination State Executive
Committee,
Sreelakam, GRA -13, Goureesapattaom, Pattom P O, Thiruvananthapuram
The President, Indian Association of Physical Medicine and Rehabilitation - Kerala
Chapter,
Sanjeevani, Church Road, Chovva, Kannur
The Secretary, Indian Medical Association - Kerala State Branch, IMA State Headquarters,
Anyara,
Thiruvananthapuram
The Director of Medical Education, Thiruvananthapuram
The Director of Health Services, Thiruvananthapuram
Stock File/Office Copy
Forwarded/By order
Section Officer