Wednesday, September 3, 2014


The State, at present, does not provide health care at any level, be it primary, secondary or tertiary, as a matter of right. The approach is more of charity than of right. There are many health care schemes run by the government, but no laws on healthcare. The result is that a citizen cannot lay his claim over anything. Whatever little the system is offering in the name of healthcare has to be accepted without any questioning or protest.

As they say, beggars and borrowers cannot be choosers. In most of the state-run hospitals and health-centres, after standing in several long queues for hours and losing a working day, all that a poor patient gets is a prescription, that too if he gets lucky enough to see the doctor. But a prescription paper alone, howsoever well written, certainly has no healing powers. One or two odd medicines may or may not be procurable from the hospital dispensary, after another long queue. For the rest, there are private medical stores right outside the hospital. Further, if a doctor advises a medical examination, a poor patient’s medical file closes then and there for good.

Medical aid by the State
There is paraphernalia of medical aid schemes that are floated from time to time by the State. Some examples are Delhi Arogya Nidhi, Rashtirya Arogya Nidhi and Health Minister Discretionary Grant. The State wishes to retain its discretion in deciding who shall be assisted and who shall not be, for it certainly does not wish to assist all.  These schemes accordingly finance treatment for certain diseases upto certain limit with riders such as domicile of the patient in the state, family income being under a certain limit etc. There is no general policy covering the entire population. Moreover, if the cost of treatment exceeds the limit fixed by the State, the patient is left free to die.  The patient has a right to nothing.
The EWS treatment facility in identified private hospitals on government land
The Hon’ble Supreme Court in a Social Jurist PIL on 01/09/2011 had directed the indentified private hospitals of Delhi set up on public lands granted at concessional rates to provide free treatment to patients belonging to EWS category to the extent of 25% of total OPD and 10% IPD. Presently, 44 hospitals are identified as being under this obligation.

The Hon’ble Supreme Court directions have resulted in a movement of its own kind. With the rise in awareness and assertiveness levels of poor people in the city, the occupancy of EWS beds in these hospitals has been raised to a considerable level. There are thousands of success stories of poor patients having been treated by these big-shot hospitals under EWS category and many more are being written very day. Many hospitals have a continuous waiting list of patients against EWS beds. With rise in occupancy, the limitations of this provision have also become more conspicuous. Clearly, the identified private hospitals have a limited obligation, which gets over the moment their quota is exhausted. It is for the State to ensure that no patient is left without medical care.

Sometimes, poor patients or their relatives, faced with medical emergencies, either out of ignorance of EWS provisions, or not finding any vacancy in the EWS quota, take admission against general beds and land up in tight situations as there is no provision as such for subsequent conversion of a patient form general to EWS category. In one such case, a rickshaw-puller whose son was facing a medical emergency and receiving treatment in a private hospital in Delhi, telephoned me and narrated his saga. He was handed over a bill of Rs. 1 lac by the hospital. He immediately sold off his jhuggi to arrange that amount. Next day/week, he was handed over with another Rs.1 lac bill. This time, he had nothing to sell.

We do not have even a statutory right, forget Fundamental Right to health in our country as of today. Under the present legal position, the right to health flows from the right to life under Article 21 of the Constitution of India. It has received some acceptance from the Hon’ble Supreme Court of India. However, in the absence of clear and specific entitlement in the Constitution and without any statute in this regard, this right remains vague. Further, the major court decisions so far have been limited to right to medical aid in life-threatening situations. This is one of the limitations of placing right to public health within right to life under Article 21. Although there is no bar upon interpreting right to life under Article 21 as a right to a healthy life with availability of adequate medical facilities, health-jurisprudence in our country is yet to reach that stage, although efforts are on in this direction.
Recently, we have filed certain cases for patients whose life as such is not in danger, but they are suffering from diseases which have consequences for their health and pose a hurdle in healthy enjoyment of their lives. In one of the cases, a man in his mid-thirties is crippled by Reiter’s disease and confined to bed. Further, his condition is deteriorating. He requires a hip and knee replacement surgery and AIIMS has asked him to deposit 10 lacs rupees for the said surgery.

Another case is of a teen-aged girl suffering from Turner’s syndrome with short stature. The girl, besides having a stunted growth, is also at a high risk of developing reproductive disorders and kidney disorders. The girl requires growth hormone therapy which costs around Rs. 12,500 a month. The PM Relief Fund has financed four months’ treatment for the child. However, an incomplete treatment would do no good to the patient and therefore we have moved to the Delhi High Court asking for the cost of complete treatment to be borne by the State. The Deli High Court has already ordered continuation of treatment till November,17, the next date of hearing.

In Paschim Banga Khet Mazdoor Samity vs. State of West Bengal (1996) 4 SCC 37, the Hon’ble Apex Court has held that it is the Constitutional obligation of the State to provide adequate medical services to the people and the State cannot avoid the same on account of financial constraints. In this case, a man had fallen off a train and received serious brain injuries. After several state hospitals refused treatment on account of shortage of beds and lack of expertise, he had to seek treatment at a private hospital. Thereafter, he filed the said case seeking compensation from the State. The court said held that there was no escape from the constitutional obligation of the State to provide medical aid to preserve human life. This constitutional obligation has to be kept in view while allocating funds for medical services.

Mohd. Ahmed (Minor) vs. Union of India and Ors. (the Gaucher’s Case)
Recently, Mohd. Ahmed’s case pertaining to Gaucher’s disease, the Hon’ble High Court of Delhi has dealt with several issues pertaining to the Right to Health care, financial constraints of the State, Corporate Social Responsibility, policy on rare diseases etc at length. The Court has held that although obligations under Article 21 are generally understood to be progressively realisable depending on maximum available resources, yet certain obligation are considered core and non-derogable irrespective of resources constraints/ providing access to essential medicines at affordable prices is one such core obligation.” The Court further observed that by their inaction, the Central and the State Governments had violated Articles 14 and 21 of the Constitution.

Seven year old Mohd. Ahmed suffers from Gaucher’s disease type –I. His father, being a rickshaw-puller, was unable to afford the cost of the treatment. Ahmed’s four siblings had already died of Gaucher’s. Ironically, all of them had died at government hospitals, before the blind eyes of the government health-care system, for want of medicines. He approached the Delhi Health Services for grant under Delhi Arogya Nidhi scheme, but the same being a one-time grant of upto 5 lac rupees, could only finance the treatment for one month, the cost of Enzyme Replacement Therapy (ERT) being 4.8 lacs at that time. He therefore approached me and I filed a petition in the Hon’ble Delhi High Court on behalf of Mohd. Ahmed. The Court gave directions to the State Government as well as the Central Government to hold a meeting to see if the matter could be amicably resolved. The outcome of the meeting was that the Governments felt that they could not formulate any policy to provide financial assistance to such patients. Interestingly, as a glaring example of inequality, the same Governments have reimbursed medical expenses running into crores of rupees towards treatment of the kin of their employees and of Legislative Assembly members, a fact which was also recorded by the Court in this judgment. The Hon’ble High Court ultimately decided the matter by directing the Government of NCT of Delhi to provide treatment to the petitioner free of cost.

 The way ahead
Right to a healthy life, with requisite medical services is a right that clearly flows from the right to life. But at the same time, it is a right worthy of an independent recognition. Placing right to health within right to life would subject this right to the mercy of judicial interpretations on case to case basis. The only way out is to legally bind the State to provide free medical treatment to all, irrespective of their financial status. It has been observed that those above the poverty-line or the EWS income limit are no better placed in terms of affordability of treatment. The cost of treatment of critical diseases often runs into several lacs and those marginally or even substantially above the income-limits often find themselves even more impoverished than those under the said limits, as they are disentitled even to receive those few benefits which the EWS patients can avail of, despite being equally incapable to afford the treatment.

Thus, it is imperative to amend the Part III of the Constitution to make right to public health a Fundamental Right. Further, the Seventh Schedule should be amended and the subject, public health, presently as State subject as Entry 6 in List II, should be transferred to List-III, i.e. the Concurrent List. The Central Government should enact a national law on Right to Public Health on the lines of the Right of Children to Free and Compulsory Education Act, 2009. Till the time it happens, public health in India remains at the mercy of the vagaries of the policies.

Lecture delivered by Advocate Ashok Agarwal in South Asia LSD Symposium at New Delhi on 31.08.2014.
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