India Health Education Frameworks for Collaborations in the Digital World
Education and health have much in common. They both serve the greater social good and are basic human necessities. Looking at the course of the pandemic, these industries have also experienced a high degree of adaptability and, as a result, a significant boom. For example, instead of “going” to the doctor as we used to, the doctor goes home thanks to telemedicine. Instead of “going” to school, teaching is coming home through online courses. Adoption has been a two-way street – doctors and academics who were hesitant to go online earlier have also become very comfortable with this new approach, with some even moving exclusively to digital media. Due to comfort with technology, medical education and medical research have also moved online, opening up opportunities for cross-border collaboration.
Foreign universities and research institutes have always looked to India because of its brainpower, research, infrastructure and availability of resources. The ongoing conflict in Ukraine has further highlighted the need for more medical education resources, and India has already begun to step up its efforts. The use of digital medium for communication and monitoring makes it easier for foreign universities and institutes to work in India, without a presence on the ground, as long as they have the help of Indian partner institutes at their side.
One of the most common ways for foreign and Indian institutes to work together is through collaboration. Foreign educational institutes are licensing their existing research and R&D to an Indian counterpart and the parties are working together to leverage it. Overseas institute support can be provided through real-time online support. Often, collaborations aim to establish long-term R&D centers or centers of specialization or excellence in India. Since all efforts are focused on the development of valuable intellectual property, strong legal clauses, including those relating to confidentiality, are essential. If the collaboration is with an Indian university or college and the students are likely to receive a degree or diploma at the end of it, the revision of Indian education laws may also be important from the point of view of structuring and compliance.
There are variations to this model. One being where the license comes with services. Here, the foreign institute provides services like training and consulting. This too can happen via virtual mode. Even teaching services can be provided through online medium. Historically, there are also arrangements whereby foreign qualified doctors visit Indian medical colleges to teach students. While this works very well, it should be kept in mind that the movement of employees or the presence of employees of the foreign institute in India does not lead to the creation of a permanent establishment (PE), resulting in exposure tax for the foreign institute. The analysis is delicate, but important. If a PE is formed, the foreign institute would be taxed at 40% (excluding surcharge and franchise) in India on the profits attributable to such PE. Considering the high tax rate, online education services work better to minimize the risk of PE in India.
There has also been growing interest in collaborations for teleconsultations. Here, foreign doctors associated with a foreign medical institute, research center or university provide teleconsultations to Indian doctors. This model has been increasingly adopted, mainly because territorial limitations on the provision of medical advice still apply, which prevent foreign doctors from consulting Indian patients directly or prescribing drugs for treatment. Through doctor-to-doctor or second opinion consultations, Indian patients can always benefit from the global expertise of foreign doctors through their Indian referring doctor without having to travel across the globe. Indian doctors are also able to physically examine the patient (for in-person consultations) and prescribe medication based on the advice provided by the foreign doctor. However, some rules do not apply. For example, foreign institutes should ensure that medical advice is provided to the Indian doctor, who would then use his professional judgment to determine the best treatment for the patient. When patient data is shared, Indian privacy and data protection compliances should also be considered. The issue of liability and compensation in case of misuse of data, data breach or cause of negative impact due to reliance on advice should also be dealt with contractually. There is also an additional tax consideration – foreign telemedicine platforms may be considered an e-commerce operator for the purposes of Indian income tax laws. Payments made by Indian doctors, hospitals or patients to these platforms may result in an equalization tax of 2%, which is payable by the foreign provider to the Indian tax authorities.
When foreign doctors visit India, additional considerations would also apply. Currently, registered foreign doctors are allowed to undertake limited activities such as becoming an observer, for postgraduate training or fellowships with Indian institutions, provided that the foreign doctor obtains temporary registration with the National Medical Commission – the Indian Regulator of Medical Practice and Education – for this purpose. They are not allowed to examine patients or perform procedures per se. The responsibility for the actions of the foreign doctor during his visit lies with the institute, which is also responsible for applying for registration on behalf of the doctor. Advance planning would also be required, as the registration usually takes a few months to be issued. Given these restrictions and obligations, it may make sense to engage in teleconsultations or online teachings and research, rather than in-person visits.
There has also been an increase in the provision of mental health and general wellbeing services online. In fact, the Indian government announced the launch of a national tele-mental health program in the recent Union budget, given the overall toll of the pandemic on the Indian population. Foreign institutions looking to enter or collaborate with Indian partners in this space should keep in mind that clinical psychologists, counselors and nutritionists are regulated differently in India, with each specialty having requirements for obtaining a permitted under different Acts such as the Mental Health Act, 2017, the Rehabilitation Council of India Act 1992 and the recently introduced Allied Health National Commission Act 2021. While this may pose challenges for overseas professionals consulting directly with Indian patients, such as medical consultations, doctor-to-doctor consultation and second opinion models in collaboration with Indian partners can also be explored for the mental health space. and well-being.
Overall, many structures exist for collaboration opportunities between foreign universities, research centers or hospitals with their Indian counterparts in the field of medicine and medical education, research and consultancy. Most of them can now also be done in virtual mode. With proper planning, strategy and legal advice, virtual media can be a great way to explore opportunities for collaborative cross-border research and education – all for the greater good.
Nishith Desai Associates 2022. All rights reserved.National Law Review, Volume XII, Number 132