Right to get Medical Assistance in India- Where do we stand? — Law Insider

Right to life and personal liberty is one of the most appreciated and pivotal fundamental human rights. Other rights of an individual revolve around this right and therefore the study assumes great significance of this right. The right to life is considered as the guardian right as it is one of the most important rights of a human being.

Article 21 is considered as a celebrity provision of the Indian Constitution and occupies a significant place as a fundamental right.

This right guarantees right to life and personal liberty of each and every individual and is enforceable against the State. Maneka Gandhi’s case has ushered a replacement era of the enlargement of the horizons of right to life and personal liberty and has given a new interpretation to the Article 21 of the Indian Constitution.

The wide dimension given to this right straight away covers various aspects which the founding fathers of the Constitution may or may not have visualized. The above stated revolution within the basic concept makes it imperative that the concept of right to life and personal liberty should be examined with a brand-new relevance to development, meaning, width and depth, altogether with Judicial Interpretation, justification for such liberal operations, and relation of Article 21 of the Indian Constitution along with the provisions of Article 32 and Directive Principles of the State Policy as well as the International Human Rights Instruments.

Moreover, the protection of this right is in the limelight due to people’s right been violated on a large scale in the current pandemic. People are facing difficulties even in securing a hospital bed for medical treatment. The right to life is the belief that a human being has the right to live and particularly cannot be killed by another entity including the government. Various individuals may disagree to the fact as to which areas does this right actually apply to.

Furthermore, talking about the right to medical assistance. The Constitution of India doesn’t expressly guarantee a fundamental right to health. However, there are numerous references within the Constitution to public health and on the role of the State to make provisions related to the healthcare of its citizens. A basis for the right to health is provided by the Directive Principles of State Policy partially IV of the Indian Constitution.

As we now discuss about the Right to Medical Assistance, we are able to see that in India medical aid for patients is always ignored. Hospitals always give primary priority to deposit money rather than admitting the patient to the hospital. Without an advance deposit, a patient cannot even seek medical assistance.

Low quality care is prevalent due to misdiagnosis and also due to incorrect medicines prescribed. A report discovered that a doctor at PHC in Delhi was prescribing incorrect treatment to its patients’ 50 percent of the time which caused due harm to its patients.

In rural areas, where this problem is more prevalent the people there are prevented from improving their health situation. Moreover, the regulations set up by the Union Ministry of Health and Family Welfare are not at all strict.

The 12 thFive-Year Plan of India states that there is a requirement to enhance enforcement and institutionalize treatment methods across all the clinics and hospitals within the country. There is a need to improve the standard of medical care in the country. There is always an absence of accountability in both private and public hospitals across the nation.

As we all are aware of the pandemic situation, thanks to the Novel Coronavirus. We all are stricken by the Covid-19 pandemic. However, the impact of the pandemic has affected the nation as a whole.

While some try and adapt to work through online modes, homeschooling their children and ordering food via various delivery portals, others don’t actually have a choice but to be exposed to the virus in order to keep the society functioning.

COVID-19 is killing people on an outsized scale

The government must spend a lot more in the healthcare sector and institutionalize the public healthcare system. The government must ensure that nobody in the country should be deprived of the medical care they deserve. The country needs more public hospitals so that the people below poverty line can receive free medical treatment and also the focus of the government must now shift from disease management to health management, patient education and prevention of this virus.

The situation in India is extremely bad. People are running from one hospital to another in order to secure a bed for their loved ones infected by this deadly virus. The healthcare system was not prepared for this situation.

Prevailing Covid situation in India

Lack of oxygen supply, unavailability of beds, shortage in Remdesivir injections and insufficient vaccines give us a clear picture that the healthcare system in India has failed. The pandemic has exposed the inadequacy of personal healthcare and has raised the importance of strengthening public healthcare within the country.

Recently Delhi Government fixed charges levied by private ambulance services in the range of INR 1500 — INR 4000 amid the raging pandemic.

Chief Minister Arvind Kejriwal tweeted that, “It has come to our notice that private ambulance services in Delhi are charging illegitimately. To avoid this practice, Delhi Government has capped maximum prices that private ambulance services can charge. Strict actions will be taken against those who violate the Order”.

During the long run, the government will have to re-evaluate and improve the healthcare system. As well as there should also be an increase in the number of doctors and nurses in the hospitals. Moreover, the newcomers in the medical field should also be given a chance to prove their credibility.

Post-pandemic virtual consultation will become the new normal and the government should make a proper system for it. Now when India is battling the second wave of Coronavirus many cases of hospital negligence are coming forward.

Taking instance of the incident that occurred in the Vijay Vallabh Covid hospital situated at Virar, 14 patients died within the ICU ward whereas 2 patients survived after being fortunate enough to flee the hearth within the ward. In an Interview taken by the local news authorities; a daughter whose mother passed away in the fire incident said that the hospital had asked for 30,000rs as a deposit before getting her admitted and now such negligence has taken place even after paying the money they asked for. The relatives of the deceased also believe that the hospital was at fault, as an issue with the A/C was reported by the patients within the ICU just a day before the fire took place.

As we are all aware of the shortage of oxygen supply in the country, we are able to see many cases where people are dying due to lack of oxygen supply. Patients under home quarantine are finding it difficult to induce oxygen cylinders and the cost of refilling these cylinders are also at a peak. There is no proper regulation to monitor the supply of oxygen.

The second wave of COVID-19 has left the infected patients gasping for breath as hospitals in the country are facing an acute shortage of medical oxygen. Considering the incident that took place in Nashik at the Dr. Zakir Hussain hospital, at least 24 patients who were on life support lost their lives because of the leak in a medical oxygen tank. A massive leak took place while the oxygen tanks were being refilled. This gives us a transparent picture of how people are dying due to lack of medical assistance.

In the case of Consumer Education and Research Centre Vs Union of India, the Supreme Court held that timely medical treatment is an integral part of the Right to life as per Article 21 of the Indian Constitution.

Does the Right to get Medical Assistance still exist in India?

Healthcare, like all other services comes at an extremely high financial cost. While we should always ensure that medical services should be provided to all at an affordable cost, we should also ensure that the prescribed medical treatment is accurate.

We have the right to basic medical aid, but we can only get access to it if we have sufficient funds in our bank accounts. If people think healthcare is a basic commodity, then the actual fact should be accepted that we can only afford it if we have medical coverage. Realizing the fact that medical assistance is a luxury in today’s world and that is why it should be rationalized by the government.

The emergency medical services in India have completely failed. Medical assistance is a matter of concern during the ongoing COVID-19 pandemic. There is a report that states the death of a 14-year-old kid due to medical negligence. This happened as the dialysis of the child was not done as a Covid negative report of the child was not provided to the hospital and as the dialysis did not take place the innocent child lost his life.

In today’s time there is no proper formulation of rules. Even the budget which is sanctioned by the government for the healthcare sector is in fractions and not at all sufficient considering the present situation created due to the Novel Coronavirus.

Emergency Medical Aid in India

The brutal reality is that the Novel Coronavirus also known as COVID-19 has awakened the people globally that the public healthcare system in each and every country is not at all sufficient. The main reason for the rise in number of Covid positive cases is lack of medical assistance.

During the pandemic, the private hospitals on one hand denied treating non-covid patients without a negative COVID-19 certificate and, on the other hand, they were not ready to accept the infected COVID-19 patients stating their concerns towards the negative patients admitted in the hospitals. These atrocious circumstances compel everyone to contemplate a pertinent question in regard to emergency medical aid in India.

The significance of emergency medical aid cannot be dismissed in a densely populated country like India, it is regarded as the second highest populated in the world. The Supreme Court of India has stated the right to life guaranteed under Article 21 must also include within its scope the right to health and medical aid.

Supreme Court’s tremendous Judgements

The Supreme Court of India first addressed medico-legal issues in the case of Pt. Parmandand Katara vs. Union of India and Ors. During this case, a public-spirited person had filed a Public Interest Litigation under Article 32 of the Constitution of India, 1950.

The petition was filed in retaliation to a news of a scooterist who was hit by a car and died due to lack of medical treatment. This happened because immediately after the accident the scooterist was taken to the nearest hospital but was denied medical treatment as they do not deal in the medico-legal cases. The scooterist was sent then sent to a hospital situated 20kms away which was authorized to handle the medico-legal cases.

The scooterist passed away while being transported from one hospital to another. The Supreme Court of India for the very first time stated that Article 21 also includes right to emergency medical aid and this was the primary initiative taken in order to shield the rights of the citizens of the country. The Supreme Court held that it is the right of an individual and duty of the State to provide medical assistance to the patients in emergency to preserve their lives.

Thereafter a serious issue was placed before the Supreme Court of India in Paschim Banga Khet Mazdoor Samiti vs. State of West Bengal. The victim was an agricultural farmer who accidently fell from the train and was denied medical treatment in five government hospitals and in the end had to be admitted in a private hospital where he was forced to pay an exorbitant amount.

The victim then approached to the Supreme Court to claim damages as medical treatment was not provided to him by the government hospitals which amounts to a breach of Article 21 of the Indian Constitution. During the hearing of this writ petition the court observed that the public hospitals were not sufficiently equipped to treat such serious cases in emergency.

A research committee was appointed to look into the matter meticulously. The Supreme Court held that preservation of human life is of prime importance and if timely medical aid is not provided to patient it may result into death or permanent paralysis of the patient.

In the case of Medical Association vs. V. P. Shanta, the Supreme Court of finally decided this matter and declared that the patients seeking medical aid are included under the definition of the ‘Consumer’ and healthcare is defined as ‘Service’ as per the guidelines of the Consumer Protection Act.

The Supreme Court has further stated that denial of emergency medical treatment is in violation of Article 21 of the Constitution of India. Hence it is the basic right of the citizen to get emergency medical aid without any conditions.

As addressed by Justice K.G. Balakrishnan, the Chief Justice of India “Right to health is a difficulty of fundamental importance in Indian society. The responsibility to safeguard, respect and fulfil the right to health lies not only in the hands of the health professionals but also with the public functionaries like Administrators and Judges.”

March 2021 marks one year since the declaration of medical emergency in India, COVID-19. The present emergent pandemic is extraordinary and has taken a large number of lives. There is a strong need of a set of directives to be issued by the government in order to curb this situation.

Vaccinations are available in the market but there is a huge shortage of the doses as compared to India’s population. Thus, uniform vaccination programs must be implemented by the government and should be monitored continuously in order to avoid black-marketing of the vaccination doses. Wearing masks is mandatory and those who violate the rules should be strictly fined. Diverse actions should be taken to fight against the Novel Coronavirus.

Therefore, it is high time that along with the government, we the people of India should also take some drastic steps so as to curb the pandemic situation in the country.

Reference:

  1. Consumer Education and Research Centre Vs. Union of India 1995 AIR 922, 1995 SSC (3) 42, referred from www.indiankanoon.org
  2. Pt. Parmandand Katara Vs. Union of India and Ors 1998 AIR 2039, 1989 SCR (3) 997, referred from www.indiankanoon.org
  3. Paschim Banga Khet Mazdoor Samiti Vs. State of West Bengal 1996 SSC (4) 37, JT 1996 (6) 43, referred from www.casemine.com
  4. Medical Association Vs. V. P. Shanta 1996 AIR 550, 1995 SSC (6) 651, referred from www.indianlawportal.co.in

Originally published at https://www.lawinsider.in on May 9, 2021.

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