Theme: Employment

Non-Solicitation Clause

Poaching of Co-Workers

If there is a non-solicitation clause in your agreement, you cannot enlist other employees of the company in a business, trade, or profession that would harm the interest of the company. This restriction applies to you both while in the employment of the company and after you have left.

For example, if Harpreet Bedi leaves AYS Computers to start his own company, he cannot take employees/co-workers from AYS along with him. If he does so, he would be in violation of his contract with AYS and can be sued by them for breach of contract.

Poaching of Clients

Depending on the nature of employment, in some cases, this restriction on solicitation extends to customers of the company you are employed with as well. If you are leaving your current company to join a competing company or to start your own, you cannot take clients of the workplace you are leaving with you. This will affect the business of your ex-employer and you can be sued.

For example, if Lokesh Sharma leaves XYZ Ltd. to start his own company, he cannot take clients from XYZ Ltd. along with him while leaving. If he does so, he would be violating his contract with XYZ Ltd. and can be sued for breach of contract.

Complaining against a Clinical Psychologist

You can complain to multiple forums regarding the misconduct of clinical psychologists. The violation of any of the general duties of a psychologist can be grounds to take action against them.(( Regulation 15, The Rehabilitation Council of India (Standards of Professional Conduct, Etiquette, and Code of Ethics for Rehabilitation Professionals) Regulations, 1998)) Some of the forums include:

Rehabilitation Council of India

The Rehabilitation Council of India is the forum that oversees the work of a clinical psychologist. You can lodge a complaint against a professional on the ground of ‘Professional Misconduct’. The Council can order the removal of a psychologist’s name from the register of Rehabilitation Professionals (permanently or for a specified period of time), if found guilty. (( Section 21, The Rehabilitation Council of India Act, 1992))

State Commissioner of Disability/ Chief Commissioners of Disabilities

If you are a person with a disability who was treated by a clinical psychologist who violated their duties/ethics, you have the option to complain to the State Commissioner of Disability or Chief Commissioner of Disabilities, Government of India. You can find the list of State Commissioners here.

Mental Health Review Board/State Mental Health Boards

You can approach three main authorities if you have been treated by a clinical psychologist at a mental health establishment for mental health issues:

  • Central Mental Health Authority – It is the central authority under the law, which has functions including registering all mental health establishments under the Central Government, maintaining a register of all mental health establishments in the country, developing quality/service norms for mental health establishments under the Central Government, supervising all mental health establishments under the Central Government, receiving complaints about deficiencies in provision of services, etc.
  • State Mental Health Authority – It is the authority at the state level which has functions including registration of mental health establishments in the State, developing quality/service norms for mental health establishments in the State, supervising all mental health establishments in the State , receiving complaints about deficiencies in provision of services, etc.
  • Mental Health Review Board – It is the authority at the district level under the law, which has functions to register, review, alter, modify or cancel an advance directive, to appoint a nominated representative, to adjudicate complaints regarding deficiencies in care, etc.

As of now, the authorities, particularly the Central Mental Health Authority and the Mental Health Review Boards are functioning. However, some States, such as Delhi, Kerala, etc. have constituted the State Mental Health Authority. You should seek information about the functioning of these authorities from your respective State.

Training Bonds

What are Training Bonds?

In some cases, an employer may make you sign a training bond. According to the terms of this bond, you will have to work for that company for a specified period of time. You cannot terminate the employment before the required period is over. If you do, you will have to compensate the employer as per the terms of your agreement.

Why are Training Bonds Signed?

This type of bond is usually signed when there is some training involved, the cost of which is borne by the employer. The idea behind it is that if the employer is investing their resources in training you, they should also be able to utilize your talent and reap the outcome of the training. Therefore, training bonds are usually signed to protect the interests of the employer.

For example, Bhanu Rao was offered a job at Centaur Hotels. When he accepted the offer, Bhanu was made to sign a training bond which stated that he would have to work for the company for a minimum period of 2 years, which would also include a 6-month training period, cost of which would be borne by Centaur Hotels. If he were to leave before the expiry of the training period, Bhanu would have to pay to Centaur Hotels the cost of his training. After one and a half years, Bhanu found a higher paying job and quit Centaur Hotels, with 6 months remaining on his bond. Now, Centaur Hotels has a right to recover the cost of training from him.

Amount of Training Bond

It is important to note that the amount given in a training bond should be reasonable and is usually decided depending on the facts and circumstances of each case.

Who is a Medical Practitioner or Doctor?

A Medical Practitioner is a professional who practices medicine through the study, diagnosis, prognosis, and treatment of any disease or injury or other impairments. As per Indian law, a registered medical practitioner is a person whose name is found in the State Medical Register of any State, and who possesses the required medical qualifications.(( Section 21, Indian Medical Council Act, 1956))

However, a Physician is a Doctor with qualification of MBBS, or MBBS with post graduate degree/ diploma, or with equivalent qualification in any medical discipline. Only a doctor having a qualification recognized by the Medical Council of India and registered with the Medical Council of India/State Medical Council(s) can practice the  modern system of Medicine or Surgery.(( Regulation 1.1.3, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002))

Qualifications

Doctors are registered medical practitioners under the law if they:

  • Hold recognized medical qualifications granted by Universities or Medical Institutions listed in the Indian Medical Council Act.(( Section 2(h), Indian Medical Council Act, 1956)) A list of recognized universities can be found here.
  • Hold recognized medical qualifications granted by certain other Medical Institutions, also listed in the Act. A list of these institutions can be found here.
  • Enrolled with the State Medical Register(( Section 15, Indian Medical Council Act, 1956))
    or the Indian Medical Register,(( Section 21, Indian Medical Council Act, 1956)) and have received a registration number.

If the medical degree is from a foreign university degree, an Indian citizen possessing primary medical qualifications awarded by a foreign medical institution must clear a screening test,(( Section 13(4A), Indian Medical Council Act, 1956)) in order to be registered with either the Medical Council of India or State Medical Council. Further, you can find a list of  recognized foreign universities here.(( Second Schedule, Indian Medical Council Act, 1956))

Notice Period to Terminate Employment

What is Notice Period?

When you decide to terminate your employment, you are required to let the employer know by giving them advance notice of your intention to leave. This is called the notice period.

How Long is a Notice Period?

The notice period will be given in your employment contract. The average notice period usually ranges from 1 to 3 months. Your employer has to pay you your usual salary during this notice period.

Waiving or Extension of Notice Period

Depending upon the circumstances, the employer may expressly waive the notice period or request you to extend the notice period. You can deny the request for extension of the notice period if you wish to do so as long as it does not go against your contract.

Leaving Without Notice Period

Leaving without giving notice or any communication may have adverse consequences, such as being sued for breach of contract or the employer may initiate arbitration proceedings against you.

Duties of a Medical Professional or Doctor

A doctor should uphold the dignity and honor of their profession,(( Regulation 1.1.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) and their prime objective should be to render service to humanity.(( Regulation 1.1.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) Further, doctors should be upright, modest, sober, patient, prompt and conduct themselves with propriety in their profession.(( Regulation 1.1.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) Legal regulations provide a comprehensive list of a doctor’s general duties, which are:

Maintaining a good practice

Doctors should:(( Regulation 1.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

  • Take care of each patient and provide proper service and devotion.
  • Try continuously to improve medical knowledge and skills. They should also use this knowledge to benefit both patients and other colleagues.
  • Practice methods of healing founded on a scientific basis. A doctor should not associate professionally with anyone who violates this principle.(( Regulation 1.2.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Maintaining medical records of patients

  • Maintaining medical records:(( Regulation 1.3, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
    • Doctors should maintain medical records of patients for a period of 3 years from the commencement of treatment.(( Regulation 1.3.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
    • Upon a request by the patient, or authorised attendant, or legal authorities, such medical records shall be produced within 72 hours.(( Regulation 1.3.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
    • A medical practitioner has to  maintain a register of all the medical certificates issued by them. The identification marks of the patient, along with the signature or thumb impression of the patient shall be collected. The practitioner has to keep a copy of the same.(( Regulation 1.3.3, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
    • Efforts have to be made to digitalize the records.(( Regulation 1.3.4, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

General Duties of a Doctor

A doctor has some general duties apart from the ones give above including:

  • Displaying registration numbers.(( Regulation 1.4, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) Upon registration, the State Medical Council gives the doctor a registration number. This should be displayed in all the prescriptions, certificates, money receipts given to the patients.(( Regulation 1.4.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Use of generic names of drugs.(( Regulation 1.5, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) The Generic Name of a drug refers to its chemical name, or the chemical makeup of the drug, rather than the assigned brand name.
  • Highest quality assurance in patient care.(( Regulation 1.6, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) Further doctors should:
    • Aid in safeguarding the profession against the admission of people who don’t have the appropriate education or don’t have the proper moral character.
    • Not employ anyone for a professional practice who is neither registered or enlisted under any of the medical laws. For example, if a doctor is hiring a nurse, it should be someone who is a registered nurse, qualified to practice medicine.
  • Exposing unethical conduct of other members of the profession.(( Regulation 1.7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Doctors should announce their fees before rendering service. For instance, personal financial interests of a doctor should not conflict with the patient’s medical interests.(( Regulation 1.8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Observing the laws of the country and not helping others in evading the same.(( Regulation 1.9, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Duties towards patients

Although doctors are not bound to treat every patient that comes up to them, they should always be ready to respond to calls from the sick and injured. A doctor can advise the patient to go to another doctor, but must treat patients in times of emergencies. No doctor should arbitrarily refuse to treat their patient.(( Regulation 2.1.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

A doctor should be patient, delicate, and must honor the privacy of the patient.(( Regulation 2.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) While explaining the condition of a patient, the doctor should neither exaggerate nor minimize the gravity of the patient’s condition.(( Regulation 2.3, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

The patient must not be neglected. Once the doctor has undertaken a case, they should not neglect the patient or withdraw from the case without giving adequate notice to the patient and the patient’s family. Further, doctors should not deliberately commit acts of negligence that may deprive a patient from necessary medical care.(( Regulation 2.4, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

If your doctor fails in any or all of these duties, you can complain against them in the appropriate forum.

Fired from your Job

If your employer fires you from the job, it may either be according to the notice period or any other terms given in your contract. Your employer may terminate your job if:

Employment-Related Disputes

  • Your performance is not good.
  • You were involved in any criminal activities such as insider trading.
  • You have breached any HR policies or you have violated any code of conduct etc.
  • You have committed an act of sexual harassment at your workplace which has been proved.

Violation of Terms of your Contract

If you violate any terms of your contracts such as non-compete, non-disclosure, non- solicitation clauses, etc. then you may be fired by your employer.

Fired Without Any Specific Reason

Even if you have not violated any terms of your contract or if you are not involved in any disputes, the decision to either fire you or let you continue in the job lies with your employer. This is usually referred to as ‘termination without cause’.

Misconduct by a Doctor/Medical Professional

As per the law, violation of any of the doctor’s duties will qualify as ‘misconduct’ and can result in disciplinary action being taken against a doctor. Further, some other acts also qualify as ‘misconduct’ and can be complained against, like:

Improper or fraudulent activities

  • Committing adultery or improper conduct with a patient, or maintaining an improper association with a patient by abusing one’s professional position.(( Regulation 7.4, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Conviction by a court for offences involving moral turpitude*/criminal acts.(( Regulation 7.5, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Undertaking sex determination with the purpose of aborting a female foetus.(( Regulation 7.6, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Signing or giving any certificate, report, or similar document which is untrue, misleading, or improper.(( Regulation 7.7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Performing or enabling unqualified persons to perform an abortion or any illegal operation for which there is no medical, surgical or psychological reason.(( Regulation 7.9, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Confidentiality of patient information

  • Contributing to press articles and giving interviews regarding diseases and treatments which may have the effect of advertising or soliciting practices. However, medical practitioners are free to write to the press under their own name on matters of public health and hygienic living. They can also deliver public lectures and talks under their own name, and announce the same in the press.(( Regulation 7.11, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Disclosing the secrets of a patient that have been learnt in the exercise of their profession. However, disclosure is allowed:
    • in a court of law under orders of the presiding judicial officer;
    • in circumstances where there is a serious and identified risk to a specific person and /or community; and
    • in case of notifiable diseases.(( Regulation 7.14, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Publishing photographs or case reports of patients without their permission. For instance, a doctor cannot publish the patients identity in any medical or other journal in a manner. However, if the identity is not disclosed, the consent is not needed.(( Regulation 7.17, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Refusing patient treatments

  • Refusing only on religious grounds to give assistance in or conduct of sterility*, birth control, circumcision and medical termination of pregnancy when there is medical reason to do so. However, practitioners may refuse to do so if they believe that they are incompetent for the same.(( Regulation 7.15, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Conducting operations or treatments

  • Conducting operations without obtaining written consent from the husband or wife, parent or guardian in the case of a minor, or the patients themselves. Additionally, consent of both husband and wife is required in operations that result in sterility. (( Regulation 7.16, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))
  • Conducting in vitro fertilization or artificial insemination without the informed consent of the female patient, her spouse and the donor. However, the female patient should give written consent. Providing sufficient information about purpose, methods, risks, inconveniences, disappointments of the procedure and possible risks and hazards is also a duty of a doctor. (( Regulation 7.21, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Further, this is not a complete and exhaustive list of all kinds of professional misconduct. Circumstances that are not mentioned above may also qualify as professional misconduct and the responsible medical council can take action on the same.(( Regulation 8.1, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Remedies for Violation of Contract

For Violation of Contract

If there has been an instance of violation of your work contract, your only remedy is to go to court or arbitration. If your office has a trade union, you can approach them.

For Grievance Against Employer

If there is a grievance between you and your employer, usually the method of dispute resolution will be given in your contract. It might also be mentioned in the HR policy of your organization.

Remedies for the Employer if You Violate the Contract

If you breach the contract, the employer  can also exercise their rights and  go to court or arbitration. Your employment contract, as well as the HR policy of your organisation may mention the remedies available to the employer. Typically, they do not have provisions for the employee to proceed against the employer.

Complaining against a Medical Professional

You can file any complaint with regard to professional misconduct to the State Medical Council or Medical Council of India for disciplinary action.(( Regulation 8.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002)) The list of all the State Medical Councils in India can be found here.

Procedure to complain

If the State Medical Council has not decided upon a complaint for over six months, the complainant can approach the Medical Council of India (MCI). Additionally, the MCI has the power to withdraw the case from the State Council and transfer it to themselves.(( Regulation 8.7, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

If a person is not satisfied by the decision of a State Medical Council, they may go to the MCI to challenge the decision within 60 days from receiving the order by the Council. However, if 60 days have passed, then the MCI may or may not accept the complaint of the aggrieved person.(( Regulation 8.8, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))

Punishment 

Once a complaint is received, the relevant Medical Council will hear the practitioner. Further, if the person is found guilty, the punishment will be determined by the Council. For instance, it can direct the name of the practitioner to be removed from the corresponding register altogether, or for a specified time period. This means that the practitioner will not be able to practice for that period.(( Regulation 8.2, Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002))