Expert Comment: Right to health bill passed by Rajasthan Legislature

Right to health bill passed by the Rajasthan legislature has invoked huge reaction from the medical fraternity in the State of Rajashan as well as across the country. Political leadership of all parties from Rajasthan is speaking in favour of the Act whereas Medical leadership all over the country is speaking against the bill. Some doctors have written against the bill whereas some doctors have welcomed the first of its kind Act. Overall there is a situation of confusion. Government says that the Act will be implemented; doctors in Rajasthan have gone on strike, closing all private medical services. This article gives background of healthcare in Rajasthan and legal issues involved.

It may be recalled that a patient named Asha Bairwa, resident of Lalsot, Rajasthan started having labour pains for which she approached the primary health centre in her village. Since treatment could not be provided in the PHC, she was referred to the District hospital at Dausa. District hospital did not have facilities for caesarean section so she was sent to Jaipur which is about 150 km away. Government hospital in Jaipur insisted that if she agrees to undergo tubectomy, they will do a caesarean section. The woman had two daughters and in case she delivered one more daughter, she wanted to take another chance for having a son. So they called doctor Archana Sharma in Dausa; who had conducted her first delivery. Dr. Sharma said that she will not insist on tubectomy, and do the caesarean section. Patient travelled back 150 odd kilometres, and reached Dr. Archana Sharma’s hospital. Dr Sharma conducted her operation, but because of 7 to 8 hours spent travelling from Lalsot to Jaipur and back to Dausa, the patient was exhausted. As a complication of the prolonged second stage of labour, the patient had postpartum haemorrhage (PPH). Dr. Sharma gave two bottles of blood, but the patient succumbed. Holding the doctor guilty of negligence, the police slapped section 302 of IPC (Murder) . Dr. Archana Sharma was stressed out and committed suicide as she was unable to withstand the pressure of impending arrest.

Nothing more needs to be said about the condition of government healthcare machinery and medico-legal situation in the State of Rajasthan. Hon’ble Supreme Court Judgment in case of Jacob Mathews vs State of Punjab (2005) categorically states that no doctor can be harassed and arrested without having an opinion of the expert committee. Hon’ble Supreme Court Judgement in case of Lalita Kumari vs Government of Uttar Pradesh (2014) mandates preliminary inquiry before filing FIR by the police in case of medical negligence. The Rajasthan police did not pay any heed to these orders and slapped section 302 of IPC in the FIR filed by them without the opinion of any expert. During the last 18 years, Neither Government of India, nor the Government of Rajasthan have made any Acts to protect doctors. Naturally doctors in Rajasthan are intimidated due to the possibility of any action by police or government babus; which is likely even in case of frivolous complaint against them under this Act. The Act offers protection only to doctors in government service.

Public health is inefficient, and private healthcare services are the mainstay of healthcare delivery in India in general and Rajasthan in Particular. Government, which did not bring enactments as per Jacob Mathew and Lalita Kumari judgments; is giving justification of Hon’ble Supreme Court order in Parmanand Katara vs Union of India (1990) for the most dreaded clause of the Right to Health Act. It states that patients have the right to emergency care in all hospitals including private hospitals. Parmanand Katara speaks about doing away with the need of paperwork and consent of people who bring the victim of an accident to the hospital. It imposes an obligation on doctors to stabilise the patient without financial considerations. Doctors have a duty to transfer the patient to a facility where required treatment can be provided If necessary. For all these years, such victims of accidents have been transferred to government hospitals after giving first aid. It is a common experience that nobody even asks for the fees for such life saving treatment.

Doctors are anxious that, with such a draconian Act, who will pay for the treatment of patients? These anxieties are not unfounded. Many of the patients who are admitted to hospital are admitted for some emergency. Take an example of a woman in labour, which is an emergency for relatives though the pregnancy is known for almost 9 months. If this woman lands in an emergency caesarean section, then does the Act require the hospital to waive all the bills? Similarly a patient coming to hospital with pain in abdomen may land up in emergency appendectomy. Should the hospital do these surgeries free of cost? The hospitals fear that they will be bankrupt in no time, and it is better to stop the services. Record of Central and State governments for reimbursement of expenses to hospitals is far from satisfactory.

One of the reasons given by the government is that some hospitals which have taken concessional land from the government are not giving free service to patients as per the agreement at the time of grant of the land. It is the failure of the government in enforcing such an agreement with beneficiary hospitals. It is incorrect to hold all private hospitals ransom for this deficiency. Suitable information technology solutions can be developed to supervise implementation of such agreements. By imposing an easy solution, more than 75% of people of Rajasthan will suffer due to lack of proper healthcare in addition to creating difficulty for doctors.

Right to health of citizens under right to life of the constitution of India (Art 21), is being juxtaposed against the right to life with dignity of the doctors. Doctors have been punished for not following the order of Hon’ble Supreme Court in PtParmanand Katara imposing “obligation which is total, absolute and paramount”, but there is no punishment for blatantly violating orders of Hon’ble Supreme Court in Jacob Mathews. One doctor can not be expected to provide protection and fulfilment of rights and equity in relation to the health and well-being of 1000 people in India or 10000 people in Rajasthan without support of legislature and judiciary. Hon’ble Supreme Court in IMA vs V. P. Shantha (2006) has played its role in converting the relationship of mutual trust between doctors and patients to a relationship of mutual distrust. It is sincerely hoped that the rules being framed under the Act bring some semblance, and the healthcare in Rajasthan is back on track.

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