Jurisprudential aspect of right to health

INTODUCTION

Right to health is a social and political right that has been duly acknowledged in International arena at various International conventions as well as endorsed by our Indian Constitution as Fundamental Right under Article 21. Thus, the very concept of health has gone beyond Natural Right to become Legal Right as well as Fundamental Right. The right to health is inherent to a life with dignity, and Article 21 should be read with Articles 38, 42, 43 and 47 to understand the nature of the obligation of the state in order to ensure the effective realisation of this right.

Health is often considered as a scientific discipline that requires expertise, knowledge and skill of medicine confined to the medical professionals and scientists but it encompasses socio-economic and political determinants as well as defined by the WHO. Health and right to health is a social and political right that has been debated but often undermined by the philosophers and thinkers. Right to health has been often limited to right to healthcare that has often confined to the equitable access and availability of healthcare services. Various philosophers and their philosophies have often undermined health as a component to be looked upon as social good be it the Utilitarian Philosophy or Rawlsian Social Justice Theory. However, the concept of health and right to health got its support from Aristotle’s philosophy that the end of all political philosophy shall be human flourishing that advocates for the health policy and law. It further advocates for the Government to provide adequate goods, services for human functioning with dignity by giving the individuals the freedom to choose the quality of life they want in contrast to the libertarian theory that opposes taxing the well off to provide health care services to the worse off.

The Preamble of Indian Constitution aims to secure to all its citizen justice and equality meaning thereby the Constitution guarantees availability, accessibility and affordability of healthcare. The provisions under fundamental rights that endorse equality of opportunity in education, employment and freedoms guaranteed have direct bearing on the health outcomes. Article 21 has been interpreted to accommodate health right as fundamental right where state is obliged to provide necessary healthcare services to its citizen. The provisions under Directive Principle of State Policy though non- justiciable often guides the policy makers and the Government to take necessary welfare measures for securing the health rights of its citizen. Articles 39, 41, 42 and 47 under Directive Principle of State Policy refer to the health-related provisions. Article 47 directs state to maintain a level of nutrition and standard of living of its people and improvement of public health as its primary duty. Under the Aricle 51A (g) of Fundamental duties, the citizens are duty bound to protect and promote environment including forests, lakes, rivers and wildlife. Entry 6 of List II (State List) refers to public health and sanitation; hospital and dispensaries. Further, Entry 29 of List III (Concurrent List) empowers the State as well as the centre to frame laws for Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.

ROLE OF JUDICIARY IN HEALTH CARE

Globally, in the face of violations of the human right to health and the breach of ethical principles in health and medical care, citizens have resorted to the judicial-legal system, which has resulted in a process referred to as “judicialisation of healthcare”. Judicial-legal principles emerging from court judgments are referred to as public healthcare or social rights jurisprudence and quite often have ethical-moral overtones. Legal scholars have alluded to the influence of such jurisprudence on healthcare policies in several countries. In India, violations of patients’ rights have escalated into a widespread systemic phenomenon on account of the low political priority given to public health in policy and planning.

The major systemic challenges in healthcare are inadequate financial, human and infrastructural resources, the lack of regulatory measures to oversee the private healthcare sector, and the lack of measures aimed at protecting patients’ rights. Citizens and civil society organisations have fought against violations of the right to life and dignity in healthcare by filing social action litigations in the Supreme Court of India and high courts, and have also approached quasi-judicial/legal bodies, such as the National Consumer Dispute Redressal Commission (NCDRC). Historically, litigations related to the denial of life-saving care, including emergency medical care, in the 1980s set a precedent for healthcare litigations. This paved the way for a rudimentary judicial discourse on ethical principles in the apex court of the country. The issue of emergency medical care, which often includes dealing with life and death situations, brings into sharp focus several intersecting concerns regarding health services, the rights of patients, and the duty of the State and medical profession. The indignity caused by the refusal to treat patients in critical condition, resulting in the loss of life, undue suffering, consequent morbidity and financial loss have been challenged in courts on the ground of moral-ethical principles that form the core of the medical profession and the healthcare system in a welfare State.

The Constitution of India, to a large extent, embodies the moral-ethical principles of human rights and social rights jurisprudence of the international human rights law. In the late 1970s, ie the post-Emergency era, and the 1980s, the SC broke out of the traditional legal framework to venture to interpret the Constitution from a liberal standpoint, which gave rise to the phenomenon of public interest litigations (PILs). A series of PILs filed after that helped develop the jurisprudence of personhood, upholding the primacy of the right to life and dignity. Article 21 of the Constitution was thus established as the cornerstone of social rights and civil-political rights, including health and healthcare. Emergency care forms one of the segments of the vast number of healthcare litigations, the others being the workers’ right to medical care and civil rights litigations for the rights of persons in prisons and police custody. Litigations on emergency medical care, though miniscule in number, have significantly exposed systemic inadequacies in the area of life-saving care. These include delay in or denial of the provision of care, insensitivity and personal/ professional apathy on the part of medical professionals, especially towards patients from socially disadvantaged communities. In a few cases, petitioners from the middle and upper strata of society have spent several years fighting for justice.

The interpretation of Article 21 was first done in Minerva Mills v. Union of India that was reiterated in Maneka Gandhi Judgement to read Articles 14,19 & 21 together for purposive construction. This was further interpreted by the Honourable Supreme Court in the matter of Parmanand Katara v. Union of India , wherein the victim of a road accident was denied medical treatment by a private Hospital on the ground that it was a medico-legal case and should be attended through observance of appropriate medico-legal guidelines in the Government Hospital. The Supreme Court in this case held that the right to emergency medical care is a fundamental right in the light of Article 21 that cannot be denied by any Hospital and Medical Care facilities.

In the light of evolving jurisprudence of attending emergency medical cases, Law Commission in 201st report has specifically dealt with the cause and effects of road accident. In the report, it has been stated that India being a Welfare State is duty bound to provide requisite emergency care to the victims of road accidents as the golden rule is that 50% of deaths related to road accidents can be averted through proper access to treatment in the first hour of the accident. Further, the Supreme Court reiterated the need and essence of access to primary healthcare facility in the matter of Paschim Banga Khet Mazdoor Samiti v. State of West Bengal. In this case, the victim of a train accident was denied medical treatment due to lack of facility and ultimately he was treated in a private hospital but died due to delay in treatment. The Supreme Court held that it is obligatory on the part of the state to provide necessary primary healthcare and the excuse for insufficiency of fund cannot absolve the state from performing its duty.

In Indian context, Right to Health gets its legal status from Article 21 of the Indian Constitution. This was rightly interpreted by Honourable Supreme Court of India in the matter of Consumer Education & Research Centre v. Union of India and others, where it has been held that the right to life does not mean mere animal existence or continued drudgery through life. Right to life includes right to clean & healthy environment. In another writ petition filed for the constitution of separate committee to evaluate the harmful effects of cold drinks on the human health particularly the health of the children and to direct the government for regulatory body to check the harmful chemical contents of the foods including soft drinks, the Supreme Court held that the State shall strive to attain an appropriate level of human health, safeguarding the right to life guaranteed under Article 21 of the Constitution. Further under Article 47 of the Directive Principle of State Policy, the State shall endeavour to raise the level of nutrition, standard of living and to improve public health.

Another significant decision in the line of acknowledgment of right to health was given by the Supreme Court in the matter of Indian Medical Association v. V.P. Shantha , wherein, it was held that providing medical services whether therapeutic or diagnostic for monetary consideration amounted to service within the meaning of service as per the Consumer Protection Act, 1986 and hence any medical practitioner or hospital found guilty of negligence or deficiency in services shall be held liable as per the Consumer Protection Act. This was further strengthened in the decision given in the case Spring Meadows Hospital v. Harjot Ahluwalia, wherein it was brought that the medical services procured for the beneficiary makes him/her entitled fro protection under Consumer Protection Act. In one of the landmark judgements given in the matter of Municipal Council, Ratlam v. Shri Vardhichand holding the local bodies responsible for maintenance of hygiene and sanitation, the Supreme Court directed the Municipality to build proper drainage and filling of the cesspool to make the people free from over flow of drainage which was causing public nuisance. The Court held that it was mandatory duty on the part of the local bodies to maintain and promote a level of public health in accordance with the provisions of Article 47 read along with Cr.P.C section 133.

Collectively, the litigations point to the denial of admission in public hospitals, invariably resulting in death or subsequent treatment in private hospitals. They also point to medical malpractices and ethical violations in private hospitals. These include the discontinuation of medical care for not depositing money instantly, negligence in medical care and charging exorbitant amounts for treatment. The complete failure to provide medical care for people in police custody is another aspect that is brought out by the cases. The litigations provided profound insights into the political-economic perspective of healthcare, negligence in medical care and how this is reflected in the deterioration of ethics in the medical profession, as well as in the provision of healthcare in India. The denial of healthcare services during emergencies is viewed as symptomatic of the overall malaise of unethical practices, corruption, commercialisation and unaccountability that has set in within the medical profession. The prime reasons why unethical practice is flourishing are the political and policy eco-system, which promotes unscrupulous and unregulated private healthcare, and the health policy, which ignores the healthcare needs of the masses.

FRAMEWORK FOR RIGHT TO HEALTH AND HEALTH CARE

The right to health in all its forms and at all levels contains the following interrelated and essential elements, the precise application of which will depend on the conditions prevailing in a particular Country:

(a) Availability – Functioning public health and health-care facilities, goods and services, as well as programmes, have to be available in sufficient quantity within the Country. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the Country developmental level. They will include, however, the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs, as defined by the WHO Action Programme on Essential Drugs.

(b) Accessibility –

Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of the Country. Accessibility has four overlapping dimensions:

Non-discrimination – Health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds.

Physical accessibility – Health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities.

Economic accessibility (affordability) – Health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households.

Information accessibility – Accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

(c) Acceptability – All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life-cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned.

(d) Quality – As well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation. Universal access to good quality healthcare equitably is the key element at the core of this understanding of right to health and healthcare.

BASIC PRINCIPLES EVOLVED

“Preservation of Life / SavingLlife” and “Duty of Care” are established as absolute, non-negotiable and supreme constitutional obligations of the medical profession and the State. Conversely, refusing adequate and emergency care in institutions such as police stations, prisons, railways, and public and private medical establishments is considered a violation of the fundamental right to life. Even though ethics jurisprudence is constrained by the commercial-profiteering ethos, especially in the context of Indian healthcare policy, the analysis points to the fact that principles of right to life and dignity do lay the foundation of discourse on healthcare jurisprudence in India. This provides a strong basis for enhancing care for citizens and shaping the healthcare system to meet critical, chronic and emergency needs.

The ethical dimensions of the jurisprudence in the area of Right to Health was found on and integral to the principle of the “right to life and dignity”, enshrined in Article 21 of the Constitution. Building on this principle, the SC judgments have established that the ethical duty to “save or preserve life” is the unequivocal jurisprudential principle. The courts have reiterated that it is binding both on the State as well as the medical profession. In the Parmanand Katara judgment, access to emergency care was declared a fundamental right. Critics described it as a symbolic and “paper right” as no pathway was suggested to realise this right. Nonetheless, it served as a launching pad for the further evolution of healthcare jurisprudence. In a particular litigation the Bombay HC applied the principle of “saving life” to public services, specifically in the case of the railways. It issued a series of directives for the establishment of an emergency response and care system. The most important outcomes of this litigation were that the responsibility of the railways was extended to providing treatment to patients in railway hospitals, and that the railways were directed to save the lives of all accident victims within the railway premises (inclusive of those travelling without tickets).

A review of the litigations shows that it is with respect to medico-legal cases (largely accidents) and persons in police custody that significant ethical violations take place. In the case of accidents and trauma, the lack of timely emergency care has resulted in many deaths. Due to the medico-legal nature of the cases and fear of harassment by the police and courts, bystanders do not come forward to help the victims. In 2016, following a PIL filed by the Save LIFE Foundation in 2012, the SC took steps to usher in another law with respect to accidents and emergency care by asking the Central government to formulate guidelines for the protection of Good Samaritans from the police or other authorities. The issue of protecting doctors from legal hassles in medico-legal cases so that they can provide immediate care to patients in need of emergency life-saving care has also been addressed in an important order. People in State custody, such as those in police or judicial custody, State-run asylums and prisons, face double jeopardy– they are subjected to torture, ill-treatment and abuse, and are also deprived of adequate medical care. In Poonam Sharma vs. Union of India, the Delhi HC reinforced the constitutional obligation of policemen and doctors to treat the injured in medico-legal cases. The irrefutable nature of this obligation of the State is confirmed by Article 32 of the Constitution, which provides for access to justice as a fundamental right. …

In the context of the Constitutional obligation to provide free legal aid to a poor accused, this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater force in the matter of discharge of the constitutional obligation of the State to provide medical aid to preserve human life.

While the jurisprudence described in the previous section refers predominantly to the State and its instrumentalities, the “Duty of Care” is seen as the complementary principle that is applicable to the medical profession and healthcare providers. It is stated in Pt.Parmandand Katara that under Article 21 of the Constitution, this principle is characterised as being “total, absolute and paramount”. While it is distinctly articulated in Paschim Banga Khet Mazdoor Samiti judgment that the “duty of care” is binding on State-run government hospitals and the medical officers employed in them . In Dr. Laksman Balkrishna Joshi Vs Dr. Trimbak Bapu Godbole it is also described as being unequivocally applicable to all medical professionals, both in public and private healthcare institutions. The legal framework for the duty of care as a binding ethical and constitutional principle was provided by the SC in Pt.Parmandand Katara judgment which declared the Code of Medical Ethics (S 33 of Indian Medical Council Act, 1860) as the prevailing law for the medical profession.

The jurisprudence contains a clear reference to the implications of breaching the principles of saving life and the duty of care. It is stated that the failure to provide timely medical treatment to a person in need of emergency care is a violation of the right to life, guaranteed under Article 21of the Constitution. Subsequently, such reasoning played a role in bringing the medical profession under the Consumer Protection Act (CPA), 1986. For almost a decade, the medical profession, represented by medical associations, resisted the efforts to bring healthcare professionals, in general, and doctors, in particular, under the scope of the CPA 1986. In 1995, a historical breakthrough was made in the case of Indian Medical Association vs V.P. Shanta, in which patients availing themselves of healthcare services were defined as “consumers” and healthcare was defined as a “service” under certain conditions. It is worth noting that such legal and constitutional provisions have yet to be translated into better and ethical care for patients, especially those from disadvantaged and vulnerable communities.

201st Law Commission’s report on Emergency Healthcare recommended that Parliament make emergency care a fundamental and institutionally (both public and private) accessible right through suitable legislation. In the face of the gaps in policy and legal gaps that prevent the effective enforcement of professional duties, the ethical principles of “saving life” and “duty of care”, backed by the jurisprudential mandate, can be potent instruments to impel the medical profession to provide ethical care to patients. The legal overtones of this ethical duty were strongly reinforced in Parvatkumar mukerjee Vs Ruby General hospital stating that “medical professionals cannot refuse the duty to care”.

A major lacuna in these judgments is the failure to specify the consequences that medical professionals and healthcare providers would face in case of breach of the court’s directives. For the translation of progressive judgments and ethical principles into entitlements to patients, a comprehensive enabling law that creates systemic mechanisms for the use of ethical protocols in healthcare provision would be a positive step forward.

CONCLUSION

Several policy measures, including a comprehensive law to institutionalise ethical principles for upholding the right to healthcare, would be required for streamlining ethics in the public and private healthcare systems. The Epidemic Disease Act, 1897 is the only enactment which deals with public health even during this Pandemic situation. Public Health (Prevention, control and management of epidemics, bio-terrorism and disasters) Bill 2017 which had clear definition for public health emergency and future-proof pandemic laws got lapsed due to the lack of support from states. The Epidemic Disease (Amendment) Bill, 2020 which replaces the parent act of 1897 was passed by Rajya Sabha in September.

Most importantly, medical professionals themselves would have to show resoluteness in resurrecting and restoring the profession to its noble ethical goals of patient care and mitigation of suffering. Ethically sensitive, equitable and justice-oriented healthcare for the disadvantaged requires not only determination on the part of the medical profession, but also a strong political will.

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i Judicial Approach in Realising Health Rights: Indian Perspectives by Saroj Kant Choudhary

ii The Jurisprudence of Emergency Medical Care in India: An Ethics Perspective by Edward Premdas Pinto.

iii Ibid.

iv 1980 AIR 1789

v Maneka Gandhi Vs Union of India, 1978 AIR 597.

vi AIR 1989 SC 2039.

vii www.lawcommissionofindia.nic.in.

viii AIR 1996 SC 2426.

ix AIR 1995 SC 922.

x Centre for Public Interest Vs Union of India, 2013 (13) SC210.

xi AIR 1996 SC 550.