Health is basic human right: MP HC issues directions to state on battling COVID-19 second wave

Further referring to several Supreme Court judgments marking health as a fundamental right of the citizens, the HC bench has issued several directions to the State Government to remind the State of its duties to ensure that right.

The HC division bench comprising of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan in the order dated 19.04.2021 mentioned, "The right of the citizen to adequate healthcare emanates from the dignity and sanctity of the human life which belongs to all of them. Health, besides being a fundamental right is a basic human right, which no popular government can afford to negate."

Mentioning that the right to health forms an integral component of the right to life enshrined under Article 21 of the Constitution of India, the HC order further mentioned, "The right to health can be secured to the citizens only if the State provides adequate measures for their treatment, healthcare and takes their care by protecting them from calamities like Coronavirus."

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The High Court was listening to a suo motu Writ Petition registered on the basis of a letter (dated 08.06.2020) sent by one Senior Advocate of the Apex Court of India to the Chief Justice of India. The said letter had highlighted a tragic and condemnable sight of an elderly Covid-19 patient, who, as per the story carried out by a media portal with a photograph, was chained to bed in a private hospital at Bhopal, the capital city of the State of Madhya Pradesh, allegedly on his failure to make payment of fees for his treatment.

Wondering if the situation has changed much from then, the Madhya Pradesh HC had passed several orders to ensure that the Covid-19 patients in the State are provided timely treatment inasmuch as they are not subjected to harassment and exploitation.

During the course of the Court proceedings, the Amicus Curiae and other counsels for the petitioners in the writ petitions being heard along with the Suo-Motu appeal portrayed the picture of the ongoing crisis faced by the State following the second wave of Covid-19. They pointed out several things including an acute shortage of Oxygen and Remdesivir in the State, oral instructions of not conducting RT-PCR or antigen tests at Private labs, lack of beds in Private hospitals along with excessive charges for the same, denying treatment under Ayushman Bharat Yojana, among others.

They also pointed towards the newspaper reports in the recent times portraying the acute medical crisis and total lack of medical facilities and non-availability of Oxygen and Remdesivir injections throughout the State of Madhya Pradesh.

Thus they submitted before the Court that the Government has miserably failed to ensure the availability of treatment to poor and needy, especially in semiurban and rural areas thereby violating the right to life of the citizens enshrined in Article 21 of the Constitution of India.

On the other hand, the counsel appearing for the State Government submitted information regarding several aspects including the testing capacity, price control strategies for Covid-19 treatment, current status regarding the availability of oxygen, availability of Remdesivir, current bed availability and planning for bed capacity, additional human resource capacity, the status of the Ayushman Bharat scheme, Covid-19 Vaccination status till April 15, 2021, etc.

After listening to all the submissions by all the parties the HC bench mentioned, "Article 38, Article 39(e), Article 41 and Article 47 in Part-IV of the Constitution of India as well as the fundamental right guaranteed vide Article 21 of the Constitution of India deal with potent and substantive contents of the right to life which in its broad sweep also includes right to good health."

Clarifying the statement, the HC also referred to several Supreme Court Judgments including Pt. Parmanand Katara vs. Union of India (1989) 4 SCC 286; Consumer Education and Research Centre vs. Union of India (1995) 3 SCC 42; Paschim Banga Khet Mazdoor Samity vs. State of West Bengal (1996) 4 SCC 37; M.C. Mittal vs. Union of India (1999) 6 SCC 9 and Murli S. Devda vs. Union of India (2000) 8 SCC 765.

The Apex Court in all these cases had held that "preservation of one's life is the necessary concomitant of the right to life enshrined under Article 21, fundamental in nature, secured, precious and inviolable."

The High Court also referred to Article 25 of the Universal Declaration of Human Rights, ratified by India. It mentioned, "Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control."

Apart from being a fundamental right, the high court said,

"Health has its own prerequisites of social justice and equality and that it should be accessible to all. It includes the ability to obtain all kind of healthcare services including prevention, diagnosis, treatment and management of diseases, management of health disorders, diseases and illness as also the management of other health impacting conditions."

Taking note of the situation and the submissions made on the behalf of the State, the HC appreciated the action plan produced by the State Government which included having an in-house production capacity of 66 Metric Ton by way of Air Separation Units, arranging the Oxygen to procure 747 Metric Ton of Liquid Medical Oxygen from Steel Plants located in different parts of the country, installing 5 Pressure Swing Absorption (PSA) Oxygen Generation Plants, the promise of ensuring the supply of Remdesivir injections to Private Health care institutions, etc.

However, the court noted,

"Efforts that it is making should also reflect on ground and benefit thereof should reach the common man. It, therefore, needs to work hard towards that aim and goal."

The Court also pointed out several newspaper reports putting all kind of blames on the Private Hospitals and Private Nursing Homes. However, it also mentioned that support and cooperation of the private sector to combat the menace of Covid-19 is necessary.

"Need of the hour in this time of crisis therefore is to have best of cooperation and coordination with the Hospitals and Nursing Homes in the private sector and seek their support for timely treatment of the Covid-19 patients so as to save their lives. The State Government can in that behalf even invoke the Epidemic Disease Act, 1897 and Disaster Management Act, 2005 to the extent necessary," mentioned the HC order.

Pointing towards the newspaper reports of the past few days picturing the exploitation of the Covid-19 patients, the Court noted,

"We are inclined to believe that these news items may have reported only part truth and part emotions of those who have gone through such agony. But even if only part of it is true, the situation is really very grim."

Mentioning that in such a situation the court could not simply play a silent role, the HC bench issued several directions to the State Government to deal with the second wave of the Covid-19 pandemic.

The court ended by mentioning that the Central Government should consider arranging Oxygen on a priority basis and increase the production of Remdesivir and import it if necessary, so that by the time the peak of Coronavirus is reached, Oxygen and Remdesivir both remain available to the affected persons in sufficient quantity, to tide over the crisis.

The instructions are-

• The State shall ensure regular supply of Oxygen and Remdesivir in all hospitals including the private ones.
  
• The Covid Care Centres (CCC), Dedicated Covid Health Centre (DCHC), Dedicated Covid Hospital (DCH) shall be reactivated.
• Steps shall be taken to strengthening the District Hospitals and City Hospitals.
• District Collectors and Chief Medical & Health Officers in every District shall periodically hold meetings with concerned authorities to take stock of the daily situation
• The State shall fix the rates charged by the Private hospitals for treatment.
• Steps should be taken so that Private hospitals do not charge hefty amount as advance for treatment.
• Better utilization of Sarthak portal (https://sarthak.nhmmp.gov.in) and regular uploading of relevant data.
• Ensuring the rates of Remdesivir per vial, separately for generic and branded injections.
• Although the supply of Remdesivir might be regulated by the State, the purpose should be so hassle-free and should not be cumbersome as to ensure the supply of the drug in such a way that the time limit from requisition by the treating doctors and supply of medicines does not exceed an hour.
• The State representatives should communicate with the Government and private hospitals regularly to resolve daily problems.
• Due publicity to the Toll-Free Number 1075 (with the STD code number of respective districts) of its Covid Command and Control Centres.
• Setting up more CCCs DCHCs and DCHs by taking over buildings of schools, colleges etc.
• Setting up number of Electric Crematoriums, in at least big cities of the State, and get the Electric Crematoriums repaired, wherever they have gone out of order.
• Increasing the testing of Covid-19 and ensuring earliest submission of reports.
• Soft loan to private nursing homes and hospitals to set up their own Air Separation Units.
• Monitoring that patients from Below Poverty Line families having BPL Cards under Deendayal Antyodaya Upchar Yojana and those having Ayushman Cards and CGHS coverage facilities are not dishonored.
• The state should place on record correct data regarding sanctioned and vacant posts of doctors within 15 days, in case the vacancies are high, the State should consider appointing staff on short term basis.
• Reappointing retired Medical Officers, Para Medical staff.
• Ensuring that no hospital refuses to provide timely treatment to patients.

With this note, the HC bench disposed of the writ petitions and scheduled the Suo Motu Writ Petition to be next heard on May 10, 2021.

To view the High court order, click on the link below.

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