Fundamental Right To Health Includes Affordable Treatment: SC Suggests Cap On Fee Charged By Private Hospitals
It is most reassuring, refreshing and rejoicing to see that the Supreme Court has most recently on December 18, 2020 in a latest, landmark, learned and laudable judgment titled “In Re: The Proper Treatment Of Covid 19 Patients And Dignified Handling Of Dead Bodies In The Hospitals Etc. in Suo Motu Writ Petition (Civil) No. 7 Of 2020 has held cogently, clearly, categorically and convincingly that fundamental right to health includes affordable treatment. It is also good to see that it is not one or two but three Judges of Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah who have arrived at this commendable and learned conclusion. It is even more good to see that the Apex Court has made it amply clear that it is the duty upon the State to make provisions in the hospitals to be run by the State and/or local administration are made.
To start with, the ball is set rolling in para 1 wherein it is observed that, “We have heard Shri Tushar Mehta, learned Solicitor General for India and learned counsel appearing for various States. By our order dated 27.11.2020 passed in this proceeding we have taken suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26.11.2020 resulting in death of Covid patients in the Covid Hospital. The Court has also taken notice of earlier incidents of fire in Covid Hospitals. Learned Solicitor General had submitted that immediate steps shall be taken and the report will be submitted. State of Gujarat was also directed to submit the report.”
To be sure, it is then brought out in para 2 that, “Affidavits have been filed by Union of India on 30.11.2020 and 11.12.2020. The Union of India in its affidavit dated 30.11.2020 has brought on record the letter dated 28.11.2020 issued by Ministry of Home Affairs, Government of India. The Government of India issued advisory to all the States to prevent the recurrence of fire incident in Covid Hospitals and Nursing Homes. The Union of India has called for the status of implementation of guidelines issued in reference to preventing recurrence of fire accidents in Hospitals, status of ‘No Objection Certificate’, report regarding inspection and re-inspection of Hospitals and Nursing Homes. In pursuance of the orders issued by Union of India to all the States, status reports were sent to the Union of India which has been compiled in Affidavit dated 11.12.2020. Although different States and Union Territories have taken measures and conducted inspections, found out shortcomings regarding prevention of occurrence of fire in the Hospitals and Nursing Homes, further, audits and inspections are required to be taken. Few States have also filed their separate affidavits enumerating their steps taken by them in compliance of the advisory and requirement for. The Union of India has directed the States and Union Territories to update their respective local building bye laws/fire services synchronising them in line of “Model Bill on maintenance of fire and emergency service, 2019”, circulated by Ministry of Home Affairs on 16.09.2019.”
Be it noted, the Bench then brings out in para 3 that, “The State of Gujarat has filed separate affidavit bringing on record the directions issued by the State and the details of inspection undertaken and audit of few dedicated Covid hospitals. It has further stated that a nodal officer for fire safety has been appointed in dedicated covid hospitals (Government and Private hospitals). We with regard to above, issue following directions:-
1) All States/Union Territories should appoint one nodal officer for each Covid hospital, if not already appointed, who shall be made responsible for ensuring the compliance of all fire safety measures.
2) In each district, State Government should constitute a committee to carry fire audit of each Covid hospital at least once in a month and inform the deficiency to the management of the hospital and report to the Government for taking follow up action.
3) The Covid hospital who have not obtained NOC from fire department of the State should be asked to immediately apply for NOC and after carrying necessary inspection, decision shall be taken. Those Covid hospitals who have not renewed their NOC should immediately take steps for renewal on which appropriate inspection be taken and decision be taken. In event, Covid Hospital is found not having NOC or not having obtained renewal, appropriate action be taken by the State.”
Truth be told, the Bench then states in para 4 that, “The State of Gujarat has also brought on record the notification appointing Justice D.A. Mehta to undertake enquiry with regard to fire in Shrey Hospital, Navrangpura, Ahmedabad, in addition to enquiry in to the incident of fire in Uday Shivanand Hospital, Rajkot. The State to extend all cooperation to the Enquiry Commission so that Enquiry report be submitted at early date and the appropriate remedial action be taken by the State.”
Needless to say, it is then conceded in para 5 that, “Due to unprecedented Pandemic, everybody in the world is suffering, one way or the other. It is a world war against COVID-19. Therefore, there shall be Government Public Partnership to avoid world war against COVID-19.”
Quite remarkably, the Bench then commendably waxes eloquent to hold in para 6 that, “Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. Therefore, it is the duty upon the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State and/or local administration are made. It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished. Therefore, either more and more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.”
Without mincing any words, the Bench then observes in para 7 that, “Despite the Guidelines and SOPs issued, for lack of implementation the Pandemic has spread like wild fire. A strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.”
Furthermore, it is then also added in para 8 that, “Every State must act vigilantly and to work with the Centre harmoniously. It is the time to rise to the occasion. Safety and health of the citizens must be the first priority, rather than any other considerations.”
While directly calling upon people to do more, the Bench then very rightly calls upon the people in para 9 mandating that, “People should understand their duty and follow rules very strictly. It is the duty of every citizen to perform their fundamental duties as guaranteed under the Constitution of India. By not following the Guidelines/SOPs issued by the State from time to time, such as, not wearing the masks, not keeping social distances, to participate in the gatherings and the celebrations without maintaining social distances, they are ultimately not damaging themselves but they cause damage to the others also. They cannot be permitted to play with the lives of the others and they cannot be permitted to infringe the rights of other citizens, like right to health guaranteed under Article 21 of the Constitution of India.”
More significantly, the Bench then also puts forth in simple and straight language in para 10 that, “There is a need to help and guide our people to implement the guidelines and the SOPs issued by the Government, either the Union or the State, such as, wearing of masks, keeping the social distance etc. In many States, despite the huge fine recovered, such as, Rs. 80 to 90 crores in the State of Gujarat alone, people are not following the guidelines and the SOPs. There must be a strict implementation by the authorities so as to ensure that the SOPs and the guidelines issued from time to time are strictly adhered to and followed by the people. Additional Chief Secretary (Home)/Secretary (Home) of respective States shall ensure the strict implementation of the SOPs and the guidelines with the help of the concerned Superintendent of Police/District Superintendent of Police and the Police In-charge of the concerned police station.”
Most significantly, the Bench then elegantly, effectively and eloquently holds in para 11 that, “We have already issued various directions with regard to measures to be taken to contain the Covid-19. We once again reiterate the State to issue necessary directions with regard to following measures so as to effectively monitor and supervise the implementation of various SOPs and guidelines.
i) More and more police personnel shall be deployed at the places where there is likelihood of gathering by the people, such as, Food Courts, Eateries, Vegetable Markets (Wholesale or Retail), sabzi Mandies, bus stations, railway stations, street vendors, etc.
ii) As far as possible, unless must, no permission shall be granted by the local administration or the Collector/DSP for celebration/gathering even during the day hours and wherever the permissions are granted, the local administration/DSP/Collector/Police In-charge of the local police station shall ensure the strict compliance of the Guidelines/SOPs. There should be a mechanism to check the number of people attending such function/gathering, such as, the particulars with respect to how many persons are going to attend the celebration/gathering, timings during which the celebration/gathering is to take place etc.
iii) There shall be more and more testing and to declare the correct facts and figures. One must be transparent in number of testing and declaring the facts and figures of the persons who are Corona Positive. Otherwise, the people will be misled and they will be under impression that everything is all right and they will become negligent.
iv) Whenever directions are issued under the Disaster Management Act directing the corporate hospitals/private hospitals to keep 50% or any other percentage free municipal beds, it must be strictly complied with and there shall be constant vigilance and supervision.
v) There shall be free helpline numbers to redress the grievances of common man, when there is noncompliance of the directions by the private hospitals/corporate hospitals.
vi) Curfew on weekends/night be considered by States where it is not in place.
vii) In a micro containment zone or in an area where number of cases are on higher side, to cut the chain, they should be sealed and there should be complete lockdown so far as such areas are concerned. Such containment areas need to be sealed for few days except essential services. The same is required to break the chain of virus spread.
viii) Any decision to impose curfew and/or lockdown must be announced long in advance so that the people may know and make provisions for their livelihood, like ration etc.
ix) Another issue is a fatigue of front row health care officers, such as, Doctors, Nurses as well as workers. They are already exhausted physically and mentally due to tireless work for eight months. Some mechanism may be required to give them intermittent rest.”
Having said this, we also cannot ignore that it is then further laid down in para 13 that, “The Election Commission of India has issued broad guidelines for conduct of General Elections/Bye-Elections during Covid-19 in August, 2020. With regard to campaign of political parties following are the guidelines issued by Election Commission of India: –
“13. CAMPAIGN BY THE POLITICAL PARTIES/CONTESTING CANDIDATES
1) Door to Door Campaign: – Subject to any other restriction(s) including extant COVID-19 guidelines, a group of 5(five) persons including candidates, excluding security personnel, if any, is allowed to do door to door campaigning. 2) Road Shows: -The Convoy of vehicles should be broken after every 5(five) vehicles instead of 10 vehicles (excluding the security vehicles, if any). The interval between two sets of convoy of vehicles should be half an hour instead of gap of 100 meters. (In supersession of Para 5.8.1 of Returning Officer’s Handbook 2019)”
3) Election Meetings: – Public gatherings/rallies may be conducted subject to adherence to extant COVID-19 guidelines. District Election Officer should take following steps for this purpose.
(a) District Election Officer should, in advance, identify dedicated grounds for public gathering with clearly marked Entry/Exit points.
(b) In all such identified grounds, the District Election Officer should, in advance, put markers to ensure social distancing norms by the attendees.
(c) Nodal District Health Officer should be involved in the process to ensure that all COVID-19 related guidelines are adhered to by all concerned in the district.
(d) District Election Officer and District Superintendent of Police should ensure that the number of attendees does not exceed the limit prescribed by State Disaster Management Authority for public gatherings.
(e) DEO should depute Sector Health Regulators to oversee that COVID19 instructions/guidelines are being followed during these meetings.
(f) The political parties and candidates concerned should ensure that all COVID-19 related requirement like face masks, sanitizers, thermal scanning etc. are fulfilled during each of these activities.
(g) Non-Compliance of Instructions: – Anybody violating instructions on COVID-19 measures will be liable to proceeded against as per the provisions of Section 51 to 60 of the Disaster Management Act, 2005, besides legal action under Section 1988 of the IPC, and other legal provisions as applicable, as specified in Order No.40-3/2020- DM-I(A) dated 29th July, 2020 of Ministry of Home Affairs. District Election Officer should bring this to the notice of all concerned.
4) Allocation of public spaces must be done using Suvidha app in the manner already prescribed by Commission.”
Going ahead, it is then directed in para 14 that, “All the States / Union Territories to issue necessary directions to ensure compliance of aforesaid guidelines and guidelines although were issued by General Election/Bye Election, that can be implemented by different States with suitable modifications with reference to Elections of other organisations to ensure safety of people in general from Covid-19.”
Finally, the Bench then holds in para 15 that, “We allow further four weeks’ time to all the States and Union of India to file affidavit bringing on record various measures as indicated in this order for consideration and further directions. List after four weeks.”
To conclude, the Apex Court very rightly underscores that right to health includes affordable treatment. It also very brilliantly, boldly and bluntly minces no words to state it upfront that there should be cap on fee charged by private hospitals. Currently, we see how private hospitals charge so exorbitantly that even a middle class person as also some graded above them also find it extremely difficult to meet the expenses of the hospitals for even few hours what to talk about days or weeks leave alone the question of months! It must be said that there must be a cap not just on hospitals but also on lawyers many of whom charge exorbitantly due to which a common man finds it extremely difficult to pursue a case to its logical conclusion due to which the rich and the powerful have the last laugh!