This article is part of our Medical Negligence series.
In the case of ‘Indian Medical Association v. V.P.Shnata’, the court had the occasion to distinguish the meaning of occupation and profession when in this case of medical negligence, It has been contended that in law there is a distinction between a profession and an occupation and that while a person engaged in an occupation renders service which falls within the ambit of Section 2(1)(o) of consumer protection Act, the service rendered by a person belonging to a profession does not fall within the ambit of the said provision and, therefore, medical practitioners who belong to the medical profession are not covered by the provisions of the Consumer Protection Act.
Commissioners of Inland Revenue v. Maxse, 1919
The court referred ‘Scrutton L.J.’, who while expressing his reluctance to propound a comprehensive definition of a `profession’, said “
`profession’ in the present use of language involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale or arrangement for the production or sale of commodities. The line of demarcation may vary from time to time. The word `profession’ used to be confined to the three learned professions, the Church, Medicine and Law. It has now, I think, a wider meaning“.
Jackson & Powell on Professional Negligence
According to Rupert M. Jackson and John L.Powell the occupations which are regarded as professions have four characteristic, viz.,
i) the nature of the work which is skilled and specialized and a substantial part is mental rather than manual;
ii) commitment to moral principles which go beyond the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;
iii) professional association which regulates admission and seeks to uphold the standards of the profession through professional codes on matters of conduct and ethics; and
iv) high status in the community.
The learned authors have stated that during the twentieth century an increasing number of occupations have been seeking and achieving “professional” status and that this has led inevitably to some blurring of the features which traditional distinguish the professions from other occupations.
In the context of the law relating to Professional Negligence the learned authors have accorded professional status to seven specific occupations, namely,
(i) architects, engineers and quantity surveyors,
(vi) medical practitioners and
(vii) insurance brokers.
Matters related to Professional Liability
In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.
In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.”
Immunity from suit was enjoyed by certain profession on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now even for them the field is limited to work done in court and to a small category of pre-trial work which is directly related to what transpires in court.
Does Medical Professionals enjoy immunity?
In ‘Indian medical association (supra)’, after discussing above literature on professional immunity, concluded that,
“Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected.”
The position of Medical Profession in the society
The court again referred some literature and cases on the duty of medical Professional towards the society and its position in the society.
Mason & McCall Smith Law and Medical Ethics
Referring to the changing position with regard to the relationship between the medical practitioners and the patients in the United Kingdom, it has been said:
“Where, then, does the doctor stand today in relation to society? To some extent, he is a servant of the public, a public which is widely (though not always well) informed on medical matters. Society is conditioned to distrust paternalism and the modern medical practitioner has little wish to be paternalistic. The new talk is of `producers and consumers’ and the concept that `he who pays the piper calls the tune’ is established both within the profession and in its relationships with patients.
The competent patient’s inalienable rights to understand his treatment and to accept or refuse it are now well established.”
“Consumerism is now firmly established in medical practice – and this has been encouraged on a wide scale by government in the United Kingdom through the introduction of `charters’. Complaint is central to this ethos – and the notion that blame must be attributed, and compensated, has a high priority.”
Indian Medical Association vs V.P. Shantha; 1996 AIR 550, 1995 SCC (6) 651
 1996 AIR 550,
 Commissioners of Inland Revenue v. Maxse, 1919 1 K.B. 647 at p.657
 Jackson & Powell on Professional Negligence, paras 1-01 and 1-03, 3rd Ed.1
 [Mason & McCall Smith Law and Medical Ethics, 4th Edn.]