High powered committee to probe deaths due to oxygen crisis during Covid-19 gets HC nod

New Delhi: The Delhi High Court Tuesday said it saw no difficulty in the constitution of a High Powered Committee (HPC) by the AAP government to probe the deaths caused by an alleged medical oxygen shortage during the second wave of COVID-19 pandemic.

The court, dealing with a plea to operationalize the HPC, noted Delhi government's stand that the committee would not attribute any fault to any hospital and any compensation will be paid and absorbed by the government alone.

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It further recorded that as per Delhi government, the criteria for determining compensation will be open to scrutiny and its task would not overlap with that of a sub-group constituted by the Supreme Court on allocation and utilisation of oxygen.

"In light of the aforesaid, we see no difficulty in the HPC constituted by GNCTD in discharging its assigned role," said a bench of Justices Vipin Sanghi and Jasmeet Singh which opined that it was not necessary to await the order of the Supreme Court in relation to the grant of ex gratia compensation in terms of guidelines issued by National Disaster Management Authority (NDMA).

"The intent of the GNCTD in issuing the May 27 order (on constitution of HPC) is not to grant ex gratia amount to COVID19 victim. A perusal of the order would show that the purpose is to examine each complaint/ representation received by the committee in relation to the death of a COVID-19 patient due to lack of oxygen... We do not think it is necessary for us to await the order of the Supreme Court with regards grant of ex gratia compensation to be paid to a victim as decided by NDMA," the court stated.

The court clarified that in case an amount larger than what is being paid presently as ex gratia compensation is fixed by the NDMA, the "same would also be payable to the victim".

The court went on to record that after keeping its decision to constitute a HPC in abeyance, the Delhi government has "expressed its intention to reinstate" it, however, "due to the difference in opinion (with regards the scope of its mandate) between the council of ministers and the LG, the stalemate is continuing."

During the course of the hearing, the bench said that it would "permit it (HPC) to go on" only if the Delhi government clarifies that the compensation would be paid by them, without fixing any liability on the hospitals.

"The issue here is a legal issue. Can you determine a fault based liability by a committee (and) fix liability on a third party, which not only puts financial liability but tarnishes professional reputation," the court questioned.

"(If) you say you will fix liability, you are entering into the domain of judiciary and medical council. You can't do it," it added.

Senior counsel Rahul Mehra and lawyer Gautam Narayan, representing Delhi government, clarified that the HPC was only a "fact-finding committee" which would not attribute any fault or negligence to a hospital and "compensation was purely going from the government".

Compensation of up to Rs 5 lakh would be calculated by the HPC on the basis of an objective criteria decided by it, which would be open to a challenge by any party, the court was informed.

The lawyers distinguished the compensation awarded by HPC from ex gratia compensation of Rs 50,000 already being paid by the Delhi government and said that the scope of work of HPC would be different from that of the Supreme Court constituted committees on issues with respect to oxygen allocation and other related aspects.

The senior lawyer stated that the committee would, after calling for record and document from the hospital concerned as well as seeking an explanation, examine a complaint/representation received by it from the family of a deceased COVID-19 patient and pass a reasoned order.

Additional Solicitor General Sanjay Jain, representing the Lieutenant governor, urged the court to defer passing any order in relation to the constitution to HPC and await the guidelines with respect the grant of a uniform ex gratia compensation by the NDMA pursuant to the apex court's order.

He informed that the sub-committee constituted by the top court was already looking into the aspects with respect to the allocation and supply of oxygen and other related issues.

The court responded that the Supreme Court-appointed committee were seized of issued at the "macro level" while the HPC proposed to look at "micro situations".

"Supreme Court (order) is on logistics and not specifics... We take it that there should be over overlap," the court stated.

In the instant case, the petitioner, Riti Singh Verma, not only prayed for a direction to the Delhi government to operationalise the HPC but to also refer her case to it for grant of compensation.

The woman said that her husband was admitted to a private hospital here for treatment of COVID-19 on May 10 and he passed away on May 14 due to cardiac arrest.

It was her case that her husband was not suffering from any co-morbidities and the discharge summary does not explain the cause of his death with sufficient particulars and detail and she apprehended that the death of her husband was caused due to negligence of the hospital.

In response to the petition, the Delhi government said the HPC was constituted on May 27; however, the order was kept in abeyance on May 31. Thereafter, the Delhi Health Minister decided to revoke the order on June 4.

"The file was sent to the Lieutenant Governor for information in regular course. However, after perusal of the file the LG has expressed a view contrary to that of the minister and stated that the Department should await the outcome of proceedings in the Supreme Court / High Court and the guidelines framed by NDMA in this matter," it said.

The Delhi government maintained that there was no lawful justification for the Lieutenant Governor to object to the constitution of the HPC.

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