Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing, and medical care and necessary social services.
Article 25 of the UN Declaration of the Human Rights
Introduction:
While the Constitution of India does not distinctly recognize the Right to Health as a Fundamental right as under Part III, Article 21 ensures the right to life and personal liberty. This ‘right to life is often interpreted as a right to live with human dignity that encapsulates within it the right to healthcare. Hence, much like most Constitutions that served as inspirations for our own, the Indian Constitution distinctly outlines first-generation rights such as the right to life, right against arbitrary arrest and detention, but leaves the scope of second-generation rights- such as the right to health and social security- upon judicial interpretation.
Hence, in CESC Ltd. vs. Subash Chandra Bose,[1] the Supreme Court relied on international instruments and concluded that the right to health is a fundamental right. ‘Health’ is currently a subject in the State List and hence, various legislations, differing across states have been passed on the matter of healthcare. However, there have been recent debates about shifting the subject to the Concurrent List and bringing uniformity in the legislation passed on the subject. A survey conducted among nearly 297 doctors across various specializations concluded with the finding that nearly 50 different laws are governing various aspects of healthcare and medical practices across the country. Laws concerning medical issues and hospitals are often a wide-ranging subject concerned with issues like basic standards of infrastructure being used, proper registration and other authentication of the facilities as well as the quality and conduct of the professionals employed.
Management of Hospitals
One such issue that these legislations often deal with is the management of medical institutions and all the activities undertaken by them. While hospital management majorly entails the intricacies of conducting medical practices and the reasonable precautions that must be taken while doing the same, it also includes the vast amount of non-medical responsibilities undertaken by the staff to ensure the smooth running of the facility. Such laws not only ensure the prevention of malpractices and unethical acts but also try to curb the spread of epidemic diseases. In addition to these, they also regulate nuances of the medical practice such as procedures of conducting autopsies and authenticating death declarations. One such aspect of hospital management includes ensuring that all the medical professionals practicing in such an institution are qualified to do so. A duly qualified medical professional has the right to register themselves under the requisite authority under the state. Such authorities, for example, the State Medical Councils in each state, will often have their procedures for authentication and a set number of offenses and professional misconduct that can have such authentication revoked.
In India, such issues come under the ambit of various; legislations such as the Indian Medical Council (Professional conduct, etiquette, and ethics) Regulations, 2002 and the Indian Medical Council Act of 1956. Apart from the medical professionals working under them, the medical institution itself must be duly registered and inspected to ensure that the minimum standard of care is upheld and the volume of workload is in accordance with the infrastructure available. One such law is the Clinical Establishment Act of 2010 which classifies the various kinds of authorities that regulate the medical establishments, both public and private sector, at the national and state levels.
The Act also outlines the procedural aspect of registering such establishments and the maintenance of such registrations at various levels. Additionally, there are legislations in place to ensure the proper sale and storage of drugs and pharmaceuticals such as the Pharmacy Act of 1948 and the Drugs and Cosmetics Act of 1940, and the Amendment Act of 1982. Some other areas of hospital administration governed by various kinds of legislation are issues such as environmental safety and mandatorily providing emergency aid to those who need it.
Medical Insurance Laws
Medical Insurance is in essence, a form of contract, in which one party insures his life by paying a certain amount of premium. These contracts ensure that the medical expenses of the individual insured would be borne by the insurance provider and hence, such insurances are always uberrimea fidei meaning contracts of utmost good faith, where any non-disclosure of material facts would lead to the contract being voidable. Such policies often cover under their ambit the various expenses of boarding and nursing as well as the expenses relating to medicines and anesthetics.
Such policies often have their list of contingencies in regards to the kinds of patients that would be denied from availing of their policies. These often include treatments that are not of necessity such as cosmetic surgery and circumcision, as well as any risk ailments that may incur the insurance company an inevitable loss. Due to the all-encompassing nature of such contracts and the high costs borne by the insurance provider, there are a number of contingencies placed on these insurances, and the same are regulated by legislation.
Under Article 12 of the Constitution, Insurance Companies are considered as ‘state’, with the exclusion of private institutions providing the service. The provision of excluding patients with certain types of ailments and high-risk levels would deny these kinds of patients from exercising their constitutional right to seek healthcare, as the cost may not be feasible for every party that seeks the same. To aid with this problem, Public Health Insurance Schemes have been brought forth that aim to bridge this disparity among the populace of high-risk patients. It has been duly reiterated that in case of any ambiguities regarding the terms of the insurance contract, the policy must be drafted in a language chosen by the insurer.
The Insurance Regulatory and Development Authority or IRDA regulates the various nuances of medical insurance under the (Health Insurance) Regulations, 2016 replacing the same from 2013. Some salient features of this new policy are the discussion of issues like wellness benefits and flexibility in the standard declaration formats which were earlier not adequately dealt with. Combination plans are another aspect of this new policy where the customers can avail benefits of life and health insurance within the same plan. Cumulative bonus in benefit plans will also be introduced, where the sum insured increases cumulatively over a period of time and helps in meeting a higher expense in the future, such as specialized treatments. Further, the policy also aims to incentivize healthier lifestyles among its users by rewarding the policyholders with wellness habits and informing them of the same earlier on in the procedure. The policy also encourages insurance providers to come up with ways to cover areas that have erstwhile not been covered by insurance policies by incentivizing pilot products that can be tested out for short periods of time. Further nuances of the policy indicate that the act has been rightly amended to implement further the ideas that were put forth in the 2013 proposal.
Conclusion
While ‘health’ remains an ambiguous subject when considering the aspect of fundamental and justiciable rights, it cannot be contended that it remains an integral part of an individual’s right to live with dignity. In the absence of properly stipulated authority regarding the issue, judicial interpretation has often been of help, with various courts both nationally and internationally recognizing the importance of interpreting ‘right to life’ to include ‘right to health’. In Consumer Education and Research Center v UOI[2], the court was of the opinion that the right to health must be taken as a prerequisite for a meaningful right to life. Even though issues of management of medical institutions and patients have been rightly dealt with under a number of acts and legislation over the years, there must be further regulations to uphold the standard of public sector healthcare. This is not only important to ensure that the gap between private and public sector healthcare facilities does not widen over time, but also to provide the basic level of medical facilities to each citizen granted to them under Article 21. While the various legislations already in place at various levels do provide some benefits to those at various strata of society, the loopholes still remain for those involved in the informal sector and those who may suffer from certain ailments, genetically or as a by-product of age. The fact remains that uniform legislation has seldom been able to deal with areas such as healthcare with the diverse set of problems it poses. Another issue is that ‘health’ is a part of the State List with each state retaining sole jurisdiction over the formulation of policies in this regard. While this does ensure that the policies formed for the public are in accordance with the requirements of those at the receiving end of it, it also deters any uniform policies being made and implemented at the larger level.
References:
[1] AIR 1992 SC 573,585
[2] AIR 1995 SC 636
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