Private Hospitals Failure to Provide Timely Treatment would be Violation of Article 21: Patna HC
Patna: "Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21," the Patna High Court bench observed while stressing upon the fundamental right to life guaranteed under Article 21 of the Constitution.
The Patna High Court clarified recently that "government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life."
Further, clarifying the duty of the medical facilities a bit more, the High Court bench comprising of Chief Justice Sanjay Karol and Justice S Kumar further noted that even private hospitals are bound to provide timely medical treatment to a person and the failure to do so would result in the violation of Article 21.
The Court was listening to several petitions concerning the Covid-19 situation in the State and issues relating to the availability of medical infrastructure, oxygen, human resources, medicines etc.
While perusing the affidavit filed by Chief Secretary of Bihar, the High Court bench noted that the affidavit didn't address the issue of availability, requirement, and distribution of oxygen, and it was also "conspicuously silent" on the matter of disposal of bio-medical waste generated out of all operations concerning Coronavirus.
Looking at the other details, the Court noted that the affidavit doesn't detail the testing done in the rural areas. Further, finding the Government silent on the issue of dissemination of information and increasing public sensitivity, the High Court bench noted that "the government on its own will be unable to defeat this pandemic, until and unless it secures the support of an awakened people recognizing that a large portion of Bihar's population is resident in rural areas, this obligation becomes all the more important."
Although the affidavit shed some light on the protocol issued by the Government of India regarding 'dead body management', but it failed to highlight the problems being faced by the general public in regards to the proper performance of last rites keeping in mind the nature of the death, opined the Court. Advice was also given to the Government to ramp up vaccination across all age groups across the State.
However, the court praised the State Government's initiatives to ensure enough manpower in the hospitals and healthcare centers and mentioned that "doctors and medical professionals are our guardian angels in these difficult times."
During the course of the hearing, the senior advocate Vikas Singh raised another issue highlighting the non-availability of the oxygen cylinder(s), both of D and B-Type, necessarily required for transporting the Oxygen from the storage point/ special carrier vehicles up to the point of the end-user.
In reply, the counsel appearing for the Union Government stated that the Central Government has already done the allocation and as on 29th of April, 2020, 3688 D-Type and 6400 B-Type of cylinders (Total 10088 Cylinders) stand allotted to the State of Bihar and it would be further enhanced.
When advocate Singh raised the issue related to the inadequacy of oxygen mask and oxygen flow meter, the advocate general for the State informed the Court that the Chief Minister of the State is himself monitoring the situation in consultation with senior ministers. He further informed that the State Government, though the notification dated 01.05.2021, has given the charge of each district to the elected representatives- the ministers and MLA.
Addressing the issue of black marketing and hoarding of medical equipment, including oxygen cylinders, the Court observed, "We refrain from commenting on such human conduct, save and except direct all the functionaries to forthwith, interim release the case property per law. We see no reason why such proceedings are not conducted through virtual mode, considering that the case property is vital for saving human life and is also required to be proven during trial."
The High Court, during the previous course of hearing had expressed its desire to shift its focus from urban to rural areas and asked the State to furnish correct and complete information. In response, the State counsel expressed its reservation and submitted that perhaps the court may exceed its jurisdiction as the matter falls purely within the executive domain.
Addressing the reply on the behalf of the State, The court observed, "We are afraid it is not so, for as a Constitutional Court collectively, we hold the responsibility to ensure that the State's people, regardless of their geographical location, do get timely aid ensuring no loss of human life purely on account of lack of medical health infrastructure. We clarify that the Court is not venturing into a roving inquiry but seeks information only in the context of peculiar geographical and demographical diversity of the State of Bihar."
Further looking at the details regarding the District-wise breakup of the population living in urban and rural areas of the State, the Court opined, "It is not that Corona Virus affects only the urban population. It is also not that it does not affect rich or the poor living in the rural areas. Infrastructure right from testing up to isolation must exist in the rural areas, more so in view of anticipation of the third wave, as per the experts of the Government of India, which is likely to come soon."
The court further opined that the data produced by the State, doesn't disclose the geographical location in the matter of testing, and it doesn't indicate the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts. Thus, finding the data to be inadequate the High Court bench directed the State to file a fresh affidavit indicating District-wise breakup of the activities undertaken and the existence of the infrastructure in dealing with the second wave of Pandemic.
"Gathering such information is not difficult for everything is in a digital form, be it testing; hospitalization; distribution of life-saving drugs; infrastructure in the shape of oxygen cylinders, beds, ventilators; recovery and deaths of persons affected with the virus etc.," observed the High Court at the outset.
Further mentioning that there is no data to indicate the number of deaths that have taken place in Bihar during the second wave of the Pandemic, the Court observed, "Any death, more so, in the rural areas for lack of access to a medical facility, including testing in a violation of fundamental right." In this backdrop, the High Court bench asked the State Secretary to file a fresh affidavit,
At this outset, the Court, in a form of warning added, "We understand that the Executive are busy conducting operations, be it planning or its execution at different levels with dealing with the Pandemic. At this point, we deem it prudent not to interact with them directly. But, failure to furnish information, complete in all respect, may prompt us to do so."
During the hearing, the advocate general submitted before the Court that the authorities have already initiated action in disposing of the bodies found flowing in the river Ganga at Buxar and Kaimur. He further informed the Court that the Commissioner of the said Districts shall file his personal affidavit on this issue.
Directing the authorities to do the needful within the next two days, the High Court bench issued a slew of directions-
(i) The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.
(ii) The public representatives shall take all steps ensuring implementation of the Government policies, including immediate registration of deaths, more so in the rural areas of Bihar.
(iii) The Court directed the State Government to take all necessary steps for proper implementation of the CRS, and responsibilities enunciated for units of local government under the Registration Act as also the Panchayat Act. All deaths must be reported within 24 hours.
(iv) Shifting the focus to rural areas to ensure medical infrastructure to all.
(v) Ensure enhancing the quota of oxygen cylinders within four days.
(vi) The center shall consider the State's request seeking enhancement of quota of oxygen (LMO)
(vii) Directions were given to the Commissioner of the District Buxar and Kaimur to file an affidavit regarding disposal of the bodies found flowing in the river Ganga within the next two working days.
(viii) All concerned shall expeditiously take appropriate steps and pass orders for interim release of the case property seized in the shape of oxygen cylinders.
(ix) Municipal authorities will take steps for proper collection, treatment, and disposal of waste generated from COVID patients in home isolation.
(x) The process of procuring C.T. Scan equipment shall be expedited.
(xi) The Chief Secretary, Government of Bihar shall file a fresh affidavit, furnishing complete information within the next four working days.
(xii) Fresh data will be furnished to the Court, with respect to RTPCR, positivity rate and death, etc., making clear the geographical locations, Urban and Rural designations and also, the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts.
(xiii) It is open for the parties to respond to the affidavits dated 06.05.2021; 09.05.2021 and 11.05.2021 filed by the Chief Secretary, Government of Bihar.
To view the original court order, click on the link below.