The onslaught of the Novel Corona Virus (COVID-19) pandemic has awakened the individuals and governments globally from the delusion of possessing an efficient public health care system to the worst of the nightmares. The nightmare of people from most advanced countries dying on the streets due to non-availability of beds in hospitals is turning into reality during this pandemic.
Although the intellectuals worldwide are busy painting the post-COVID-19 scenario, it is difficult for anyone to paint a conclusive picture of pandemic aftermath. Nonetheless, this pandemic has white-washed the farce created by the States in providing efficient healthcare to its citizens.
The situation in India is much grave. Developed countries worldwide became helpless at the peak of the pandemic as the number of patients exceeded the public health care infrastructure. However, in India, the helplessness in providing adequate medical care is imposed on the citizens due to non-cooperation from private hospitals.
During the pandemic, the private Hospitals, on the one hand, refused to treat non- COVID 19 patients by mandating a COVID 19 negative certificate and on the other hand did not open up their infrastructure for the COVID-19 patients by citing health concerns of its negative patients. This non-cooperation of private hospitals was precipitated by inaction of the government in enforcing their writ on these hospitals.
These dire circumstances compel everyone to ponder upon a pertinent question related to emergency medical care in India. Whether as an Indian citizen, do we have any right to emergency medical care and whether the authorities are doing enough to ensure such right is not violated due to whims of management of private hospitals?
The question is as tricky as any question related to rights of Indian citizens enshrined in Constitution of India as it provides a dream of utopian State for its citizens, like the delusion of the efficient public health care system as stated above. However, Indians most often wake to the reality of their rights trampled upon without any redress by institutions created under the Constitution.
EMERGENCY MEDICAL AID IN INDIA:
Out of its population of 135 Crores, around 50% of Indian population is below 25 years of age. This makes India the second highest populated country in the world. If we compare the growth of the Indian population with the most populated country in the world. The growth rate of India is pegged at 1.13%, which will make it highest populated country in the world very soon.
The massive population growth has created scarcity in essentials required by a citizen to live with dignity and respect as mandated under Article 21 of the Constitution of India. However, Emergency Medical Aid facility also being a requirement under the right to life cannot be denied, and a citizen deprived of other necessities should be at least guaranteed that. The significance of emergency medical aid cannot be dismissed in a densely populated country like India, where everyone is living a stressful life and competing amongst the basic necessities of life. As per the report, there are 0.7 beds available per 1000 people in India.2
The Supreme Court of India has held that the right to life guaranteed under Article 21 includes within its ambit the right to health and medical care3. The right to life consists of the right to live a healthy life to enjoy all facilities of the human body.4
The Supreme Court has repeatedly emphasised to the government and other authorities for focusing and giving priority to the health of its citizens as it makes one's life meaningful, improves one's efficiency, and also provides an optimum output. To secure protection of one's life has been declared to be one of the foremost obligations of the State5. It is not merely a right enshrined under Article 21 but an obligation cast on the State to provide this, both under Article 21 and under Article 47.6
In India, there is no specific law laid down by the government to provide emergency medical care and is often interpreted as a right guaranteed under Article 21 of Constitution of India by Supreme Court of India and respective High Courts. A plethora of medical literature on the subject affirms that the ‘GOLDEN HOUR' is the first hour in which ‘emergency medical care' is necessary and most victims die if no such care is made available or is not provided soon. The purpose of emergency medical care is to ‘stabilise' the patient, and this, unfortunately, is never followed.
INITIATIVES BY SUPREME COURT OF INDIA IN CASE OF MEDICAL EMERGENCIES:
The first time when medico-legal case ever discussed by the Supreme Court of India was in the case of Pt. Parmandand Katara vs. Union of India and Ors7. In this case, a public-spirited person has filed a Public Interest Litigation under Article 32 of the Constitution of India, 1950. The said petition was filed in response to a news report of a scooterist who was knocked down by a car and died due to lack of medical treatment. Following the accident, the scooterist was taken to the nearest hospital but was turned away and sent to another hospital 20 km away, which was authorised to handle medico-legal cases. The scooterist died while he was being transported to the other hospital8. In this case, the Supreme Court of India for the very first time has held that Article 21 of the Constitution of India includes right to emergency medical care and articulated importance of golden hour. The Hon'ble Apex court has held that it is the Right of the Citizen and also the obligation on the State to preserve life and doctors at government hospitals are therefore required to provide medical assistance to preserve life9. This judgement was the first initiative taken by the Supreme Court of India to protect the right of the citizens of this country as per Article 21.
In the case of Consumer Education And Research Centre Vs Union Of India,10 the Supreme Court held that timely medical aid is an integral part of the right to life as per Article 21. “Social justice which is a device to ensure life to be meaningful and liveable with human dignity required the State to provide to workmen facilities and opportunities to reach a minimum standard of health, economic security and civilised living. The health and strength of the worker, the Court said, was an integral facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Article 21”.11
Thereafter a serious issue was put before the Supreme Court of India, in Paschim Banga Khet Mazdoor Samiti vs State of West Bengal 12 where the victim, an agricultural labour, who fell from a train and was denied emergency medical aid in 5 public hospitals and ultimately was admitted in a private hospital where he had to pay an exorbitant amount. The victim then approached the Supreme Court claiming damages as he was denied medical aid by the public hospitals, which amounts to a breach of Article 21 of the Constitution of India. The issue before the Supreme Court was in the context of availability of facilities in Government hospitals for treatment of persons sustaining severe injuries. During the pendency of this writ petition before the Supreme Court, the State Government, by appointing an Enquiry Committee decided to investigate the matter meticulously. The said Committee filed its report majorly pointing that the government hospitals are not sufficiently equipped to deal with serious cases and further made certain recommendation to stop the recurrence of such incidents. In this case, the Hon'ble Supreme Court has held that preservation of human life is utmost important because if timely medical care is not provided to the victim it may cause his death or leave him permanently paralysed, in such cases obtaining status-quo ante is impossible. Thus, when such unfortunate incidents occur, it is beyond the capacity of the human being to repair. The Supreme Court has held that denial of emergency medical care is in violation of Article 21 of the Constitution of India. Hence it is the fundamental right of the citizens to be provided with emergency medical care without any condition.
The Supreme Court further held that it is no doubt that financial resources are needed for providing these facilities. Nonetheless, it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done.
In the background of this, the Supreme Court also recommended to the State that they should form a Central Bed Bureau to ensure availability of a bed in an emergency. This facility should be maintained at State level hospitals, where a centralised communication system will be formed. This system will ensure that patient can be referred immediately to the hospital equipped with bed related to the treatment. If this is done most of the death which occur in India can be avoided since many of the victims die because of non-availability of beds or denial of emergency medical care.
As per the census report, the highest cause of death in India is because of cardiovascular diseases which are around 23.3%.13 Now during this pandemic, there are several reports that many patients are denied emergency medical care when he has suffered a stroke or is in crucial need of dialysis, chemotherapy or any other emergency medical care. This results in grave consequences such as death or permanent injury to the human body. This pandemic has surely got everyone on their knees globally, but the medical situation in India is hit the most because it is not legislated till date.
In this backdrop, the Consumer Protection Act, 1986 included even doctors. This was vehemently opposed by the Indian Medical Association stating doctors should not be included within the purview of Consumer Protection Act, 1986. Though it is the right of the doctor to give treatment to the patients whom he wants to, but it is his moral duty to provide emergency medical care to the person who is in urgent need of it. In the case of Indian Medical Association vs V. P. Shanta,14 the Supreme Court of India finally decided this issue and held that the patients who avail medical care are included under the definition of the “Consumer” and healthcare is defined as “Service” as per the Consumer Protection Act. Though incorporating healthcare services under the scope of the Consumer Protection Act does not serve the purpose because there are times when the patient has no guardian to look after and requires emergency medical care. This results in a denial of emergency medical care.
EMERGENCY MEDICAL CARE IN THE USA:
In the United States of America, the private hospitals were refusing to provide emergency medical care to accident victims or those who were in urgent need of medical care or women under labour. The reason being either the patients were not covered by insurance or were not in a position to pay the medical expenses. Hence, they were dumped into public hospitals which lead to denial of emergency medical care, and in many of the cases, it leads to serious consequences. This situation leads to passing of EMTALA STATUTE (42 USC 1395 DD) (Emergency Medical Treatment and Labour Act) by amending the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) also known as anti-dumping law. This Act made it a mandatory duty on the part of hospitals to attend on such persons. The Act contains an entire scheme of screening, stabilizing and rendering emergency treatment. It also deals with situations where the hospital is not sufficiently equipped to provide stabilisation or emergency treatment, and in that event, the hospital has to transfer the person to another hospital. In some instances, it cannot transfer unless the patient is stabilised. Many safeguards are provided in EMTALA as to what should be done for transfer of a person to another hospital. The EMTALA also creates offences against those who violate the duties envisaged by it.15
INITIATIVES BY THE INDIAN GOVERNMENT:
After several Supreme Court and High Court's decisions, in the year 2006 the 201st Law Commission Report on Emergency Medical Care To Victims Of Accidents And During Emergency Medical Condition And Women Under Labour16 discussed the above-mentioned issues and draft model of the Rule is formulated by the Law Commission under the chairmanship of Mr. Justice M. Jagannadha Rao. This is the only healthcare report which talks about providing emergency medical aid. One of the critical aspects of the law report is that, the victim most of the time is in critical condition where he cannot make any choices and further many a times people are not covered by insurance. Therefore the Law Commission has made the draft bill based on the principles of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This report emphasised that the Emergency Medical Service (EMS) has to be legislated so that the patients can enforce their rights. This report recommended that the Parliament should legislate this issue and make it an absolute duty of the healthcare institution, whether it is Public or Private to provide emergency medical care.
Thereafter, nothing was done by the Central Government or any of the State Government to formulate a proper law based on the draft model as provided by the 201st Law Commission Report. It is only the State of Gujarat which established Gujarat Emergency Medical Services Authority (GEMSA) in the year 2007. This regulation fundamentally makes provision for establishing a statewide system for emergency medical care and further brings NGOs and other private agencies to work together for providing emergency medical services.
APPLICATION OF EMERGENCY MEDICAL CARE IN COVID-19 PANDEMIC:
In India, a National Lockdown under Disaster Management Act, 2005 was announced on 24th March 2020 and was extended from time to time till partial opening on 8th June 2020. The citizens were directed to stay at home by the government by ensuring them every possible help for maintaining their health and wellbeing. Governments' efficacy in standing up to its promise is a subject matter of many debates and arguments. Therefore, it would be futile to rake up the issues which are being repeated 24/7.
Nonetheless, one issue which lacked focus in every argument is the suffering of the patients who were ailing from diseases other than COVID 19. Hospitals, who owe solemn duty to treat the patients started turning down such patients by refusing to provide emergency medical treatment in the wake of COVID 19. Incidents reported by reliable mainstream media outlets concerning the denial of emergency medical care to patients facing life-threatening disease unsettled the conscious of even a layman. The non-availability of emergency medical aid forced them to think about themselves facing similar situation resulting in mass migration.
Instead of saving the lives of patients suffering from medical emergencies other than COVID-19, hospitals turned them down due to which the golden hour is lost. The flimsy reason attributed by these hospitals in denying the treatment varied from protecting other patients from COVID-19 to reasons like they are operating only for patients suffering from COVID-19.
The authorities failed to act upon such negligence by the hospitals in time. Even the Supreme Court, which has passed so many directions in cases related to emergency medical care did not take timely decisions to redress such issues and rejected petitions filed on the subject on the grounds of non-interference in public policy.
The emergency medical services issue is fragmented in India. There is no specific law which governs this aspect of the Constitutional Rights. This is a serious concern during COVID-19 pandemic. There is a report where 14 years old child died because dialysis was not provided awaiting Covid19 negative certificate. In today's time, there is no proper formulation offered by the government, which makes the life of its citizens more valuable. Even the budget which is sanctioned for healthcare is in fractions. Indian Government never recognised the fact that leaving everything in the hands of the Hospitals can be disastrous. The Bombay High Court and the Karnataka High Court has taken cognizance of this issue. This issue is rampant in the entire nation; therefore, it requires the attention of the Apex Court as the government has miserably failed to safeguard the Constitutional Rights of the Citizens and failed to discharge its duty as bestowed upon them by the Constitution. As these issues are being faced by everyone throughout the country, the Hon'ble Apex Court should take cognizance of the same as the citizens are helpless in such a situation. As addressed by Justice K.G. Balakrishnan, Chief Justice of India “Right to health is an issue of fundamental importance in Indian society. The responsibility to protect, respect and fulfil the right to health lies not only with the medical profession but also with public functionaries such as administrators and judges.”17
Though the life and liberty of a person are very much protected under Part III of the Constitution (under Art. 21), and though there are appropriate directions passed by the Hon'ble Supreme Court that in all accident and emergency cases irrespective of any reasons, it is the fundamental duty of the hospitals to attend the patients and ensure their safety and well- being, unfortunately, the said directions are not complied and are being brazenly brushed off. As a result, many people requiring urgent medical attention are dying in the manner stated in the aforesaid news- reports. As per the census report in India majorly people die because of cardiovascular diseases which are anyway higher than the total death caused by Covid19 globally. Therefore there should be an effective solution to this issue and complying with the 201st Law Commission Report and forming a Central Bed Bureau can be a welcoming step to safeguard the rights of the citizens.
1 Uttamkumar S. Dubey is an advocate associated with Law Counsellors, a law firm based in Mumbai and practices before the Bombay High Court.
2 https://data.worldbank.org/indicator/SH.MED.BEDS.ZS?locations=IN&most_recent_value_desc=false report s latest till 2011 which includes inpatient beds available in public, private, general, and specialized hospitals and rehabilitation centers. In most cases beds for both acute and chronic care are included.
3 State of Pubjab v. M.S. Chawla AIR 1997 SC 1225
4 Mr. X vs. Hospital Z, AIR 1997 SC 1225.
5 Constitutional Law of India by Prof. Narendra Kumar page no. 321, Eighth Edison, published by ALA
6 State of Punjab v. Ram Lubhaya Bagga, AIR 1997 SC 1225
7 1989 SCR (3) 997.
10 AIR 1995 SC 922
11 Constitutional Law of India by Prof. Narendra Kumar page no. 322, Eighth Edison, published by ALA
12 (1996) 4 SCC 37
13 https://censusindia.gov.in/vital_statistics/causesofdeath.html- Causes of Death in India 2010-2013 published by Registrar General, India
14 1996 AIR 550