Denial of Treatment: Pandemic 2020

An infringement of Fundamental Right

Amidst the plight of ongoing corona fiasco. The major issue that we have come across is the medical failure of the state in the status quo. Recently the reports have suggested he denial of admission to various COVID patients and other patients due to the fear of diseases in private and government hospitals and reports about exuberant fees that have been charged in the name of treatment.

What is important is to limit the scope of exploitation within the constitutional framework provided it is very important to note down the rights that have been assured in order to make ethical and equitable access to public health care which can only be done when Public health comes within the scope Fundamental rights assured by the Constitution of India.

The fundamental right as stated in Article 21 of the Indian constitution enables protection of the right to life and liberty with dignity and not only animal existence that extends to all the necessary conditions essential for living a dignified life nutrition, clothing… that implies that any act which affects the dignity of an individual will also violate his/her right to life held in the Bandhua Mukti Morcha vs. UOI. Further incorporating provisions guaranteeing every citizen’s right to highest attainable standard of physical and mental health. The right to health is inherent to a life with dignity, and Article 21 should be read with Article 38, 42, 43 and 47.

Supreme Court in its judgement in Paschim Banga Khet Majdoor Samiti held the necessity of preserving life and obligations of the state as well as obligations of a doctor in the same.

In the judgement, they explain the meaning of welfare state and how it is the primary duty and essential obligation of the government to secure the welfare of the people in a welfare state. the government discharges this obligation by running hospital and healthcare centres.

In the following judgement supreme court further explains the scope of Article 21 i.e. it imposes an obligation on the state to safeguard the right to life of every person it is also held that denial of admission for treatment is an infringement of constitutional right provided under Article 21 to the patient and that state cannot avoid its responsibility for ensuring the right of the patient.

 SC further gave detailed guidelines to the government hospitals for the purpose of dealing with emergency patients.

1. Proper facilities are made available at the primary health centres and hospitals where the patients can be given immediate primary treatment so as to stabilise his condition. The guiding principle should be set that no emergency patient is denied medical care.
2. Hospitals in the district and sub-divisional levels be upgraded so as to serious cases can be treated there and the facilities for giving special treatment to be increased in regard to growing need.
3. A well-communicated Central Bed Bureau’ system to be set up through which hospital will be able to accommodate emergency patients having a vacant bed and making temporary measures to accommodate such patients.  
4. Adequate transport facility (ambulance etc) to be  provided with the necessary equipment and medical personal for the transportation of patients
5. Hospitals, primary health care centres and medical personnel be geared to deal with a larger number of emergency patients and on account of higher risks of accidents on certain occasions and in certain seasons.

Further in State of Punjab and Others vs. Mohinder Singh Chawala “it has been held that the right to health is integral to right to life. Government has a constitutional obligation to provide health facilities.” Similarly, the court has upheld the state’s obligation to maintain health services.

Parmanand Katra vs. UOI & others ruled that every sector whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid or delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute, and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained, and must, therefore give way.

Conclusion

The term Right to health is not explicitly mentioned in the constitution so the supreme court under its special power has interpreted it as a fundamental right within the scope of Article 21 of the constitution. So it is the duty of the state which has been stated as welfare state to provide for ethical and equitable distribution of the health and to further ensure the preservation of the fundamental right of an individual by providing mandatory admission and treatment to all individuals.