Right to health includes affordable treatment: HC comes to rescue of Govt Nurse

The case concerned the petitioner nurse who, while still in service as Staff Nurse, had undergone the surgery of her spinal cord i.e. Canal Stenosis on 29.06.2019 in the Raipur-based treating hospital. After being discharged, she had claimed the reimbursement of the medical bill amounting to Rs 99,743. However, the concerned authorities had rejected the claim on the ground that she had not intimated the fact of surgery in accordance with sub-rule (5) of Rule 10 of the Chhattisgarh Civil Services (Medical Attendance) Rules, and consequently, she could not get the medical reimbursement.

As per the authorities, the petitioner or her family members should have had intimated to the Director, Medical Education / Director, AYUSH, and to the Head of the Department within the time limit of 48 hours from the commencement of treatment.

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Calling the action of the competent authorities in not granting post-facto sanction as arbitrary and unsustainable in law, the petitioner patient approached the High Court. The counsel for the petitioner submitted that since the surgery was emergent surgery and the petitioner underwent the surgery in the hospital and remained in hospital for seven days, she couldn't follow the rule of informing the authorities.

At this outset, the counsel for the petitioner further argued that self-preservation of one's life is the necessary concomitant of the right to life ensured under Article 21 of the Constitution of India and therefore the order should be set aside and the authorities should be directed to reimburse the amount spent for medical expenses.

After listening to the contentions, the High Court bench noted that at the time of her treatment, the petitioner was a Government servant and she was entitled for medical reimbursement of medical expenses incurred in her treatment in accordance with the provisions contained in the Rules of 2013. However, the bench also noted that Rule 10 (7) of the Rules of 2013 made it mandatory to intimate to the Director of Medical Education or Director of AYUSH and the Head of the Department within 48 hours from the commencement of treatment.

The bench also referred to Rule 11 of the Rules of 2013, which provides for post-facto sanction which stated that "In emergency circumstances, in cases of treatment obtained in recognized private hospitals located within the State or outside the State, a post-facto sanction has to be obtained. In absence of postfacto sanction, no reimbursement of the expenses incurred for treatment in such cases may be made."

"A careful perusal of sub-rule (1) of Rule 11 of the Rules of 2013 would reveal that in emergency circumstances, in cases of treatment obtained in recognized private hospitals located within the State or outside the State, a post-facto sanction has to be obtained for granting medical reimbursement and in absence of post-facto sanction, no reimbursement of the expenses incurred for treatment in such cases can be made," noted the court.

Although the court noted that the petitioner or the family members should have had intimated about the treatment to the authorities within 48 hours, referring to the Supreme Court judgment in the matter of Consumer Education & Research Centre and others v. Union of India and others, the bench also observed that the Apex court had held in that judgment that "right to health and medical care to protect his health and vigour while in service or post-retirement is a fundamental right of a worker under Article 21 of the Constitution of India."

Similar views had been expressed by the top court in the matter of Surjit Singh v. State of Punjab and others and in the recent judgment in the matter of In Re : The Proper Treatment of Covid 19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc.

At this outset, the High Court bench noted, "Following the principles of law laid down by their Lordships of the Supreme Court in the aforecited cases (supra), it is quite vivid that right to health is a fundamental right under Article 21 of the Constitution of India as held by the Supreme Court in Surjit Singh (supra) and consequently, the provisions relating to reimbursement of medical treatment has to be construed liberally."

"The petitioner had right to take steps in self-preservation of her own life which is a facet to right to health and thus, she immediately got herself admitted in the hospital for medical treatment (Canal Stenosis), but on account of urgent medical need she or her family members could not intimate the fact of such emergency situation as envisaged under sub-rule (7) of Rule 10 of the Rules of 2013 and therefore her case could have been considered for grant of post-facto permission / sanction by the competent authority as envisaged under sub-rule (1) of Rule 11 of the said Rules; non-intimation of commencement of treatment within 48 hours would not preclude her to recover the amount of medical reimbursement from the respondents, as Rule 11 of the Rules of 2013 takes care of that situation and under Rule 11(1), post-facto sanction can be granted by the competent authority," the bench also noted.

Further, referring to the treatment which the patient had underwent, the bench noted, "Since the surgery which the petitioner had undergone was admittedly, a surgery related to spinal cord i.e. canal stenosis and that surgery can be said to be an emergent surgery in emergency situation, therefore, Rule 11(1) of the Rules of 2013 can certainly be invoked into by the competent authority and failure of the petitioner or her family member in intimating the authorities within the time limit of 48 hours from the commencement of treatment would not debar the competent authority to consider the case of the petitioner under Rule 11(1) treating the surgery i.e. canal stenosis which is a surgery to spinal cord as an urgent circumstance / situation."

Accordingly, the High Court bench directed the concerned authorities to consider the case of the petitioner patient regarding her grant of post-facto sanction under Rule 11 of the Rules of 2013 and made it clear that the competent authorities will have to consider the case within 45 days from the date of receipt of the copy of the order.

To read the case order, click on the link below.