Fundamental Right To Health Includes Affordable Treatment SC Suggests Cap On Fee Charged By Private Hospitals
It is most reassuring, refreshing and rejoicing to see that the Supreme Court has most recently on December 18, 2020 in a latest, landmark, learned and laudable judgment titled “In Re: The Proper Treatment Of Covid 19 Patients And Dignified Handling Of Dead Bodies In The Hospitals Etc. in Suo Motu Writ Petition (Civil) No. 7 Of 2020 has held cogently, clearly, categorically and convincingly that fundamental right to health includes affordable treatment. It is also good to see that it is not one or two but three Judges of Apex Court comprising of Justice Ashok Bhushan, Justice R Subhash Reddy and Justice MR Shah who have arrived at this commendable and learned conclusion. It is even more good to see that the Apex Court has made it amply clear that it is the duty upon the State to make provisions in the hospitals to be run by the State and/or local administration are made.
To start with, the ball is set rolling in para 1 wherein it is observed that, “We have heard Shri Tushar Mehta, learned Solicitor General for India and learned counsel appearing for various States. By our order dated 27.11.2020 passed in this proceeding we have taken suo motu cognizance of the incident which happened in Rajkot, Gujarat on 26.11.2020 resulting in death of Covid patients in the Covid Hospital. The Court has also taken notice of earlier incidents of fire in Covid Hospitals. Learned Solicitor General had submitted that immediate steps shall be taken and the report will be submitted. State of Gujarat was also directed to submit the report.”
To be sure, it is then brought out in para 2 that, “Affidavits have been filed by Union of India on 30.11.2020 and 11.12.2020. The Union of India in its affidavit dated 30.11.2020 has brought on record the letter dated 28.11.2020 issued by Ministry of Home Affairs, Government of India. The Government of India issued advisory to all the States to prevent the recurrence of fire incident in Covid Hospitals and Nursing Homes. The Union of India has called for the status of implementation of guidelines issued in reference to preventing recurrence of fire accidents in Hospitals, status of ‘No Objection Certificate’, report regarding inspection and re-inspection of Hospitals and Nursing Homes. In pursuance of the orders issued by Union of India to all the States, status reports were sent to the Union of India which has been compiled in Affidavit dated 11.12.2020. Although different States and Union Territories have taken measures and conducted inspections, found out shortcomings regarding prevention of occurrence of fire in the Hospitals and Nursing Homes, further, audits and inspections are required to be taken. Few States have also filed their separate affidavits enumerating their steps taken by them in compliance of the advisory and requirement for. The Union of India has directed the States and Union Territories to update their respective local building bye laws/fire services synchronising them in line of “Model Bill on maintenance of fire and emergency service, 2019”, circulated by Ministry of Home Affairs on 16.09.2019.”
Be it noted, the Bench then brings out in para 3 that, “The State of Gujarat has filed separate affidavit bringing on record the directions issued by the State and the details of inspection undertaken and audit of few dedicated Covid hospitals. It has further stated that a nodal officer for fire safety has been appointed in dedicated covid hospitals (Government and Private hospitals). We with regard to above, issue following directions:-
1) All States/Union Territories should appoint one nodal officer for each Covid hospital, if not already appointed, who shall be made responsible for ensuring the compliance of all fire safety measures.
2) In each district, State Government should constitute a committee to carry fire audit of each Covid hospital at least once in a month and inform the deficiency to the management of the hospital and report to the Government for taking follow up action.
3) The Covid hospital who have not obtained NOC from fire department of the State should be asked to immediately apply for NOC and after carrying necessary inspection, decision shall be taken. Those Covid hospitals who have not renewed their NOC should immediately take steps for renewal on which appropriate inspection be taken and decision be taken. In event, Covid Hospital is found not having NOC or not having obtained renewal, appropriate action be taken by the State.”
Truth be told, the Bench then states in para 4 that, “The State of Gujarat has also brought on record the notification appointing Justice D.A. Mehta to undertake enquiry with regard to fire in Shrey Hospital, Navrangpura, Ahmedabad, in addition to enquiry in to the incident of fire in Uday Shivanand Hospital, Rajkot. The State to extend all cooperation to the Enquiry Commission so that Enquiry report be submitted at early date and the appropriate remedial action be taken by the State.”
Needless to say, it is then conceded in para 5 that, “Due to unprecedented Pandemic, everybody in the world is suffering, one way or the other. It is a world war against COVID-19. Therefore, there shall be Government Public Partnership to avoid world war against COVID-19.”
Quite remarkably, the Bench then commendably waxes eloquent to hold in para 6 that, “Right to health is a fundamental right guaranteed under Article 21 of the Constitution of India. Right to health includes affordable treatment. Therefore, it is the duty upon the State to make provisions for affordable treatment and more and more provisions in the hospitals to be run by the State and/or local administration are made. It cannot be disputed that for whatever reasons the treatment has become costlier and costlier and it is not affordable to the common people at all. Even if one survives from COVID-19, many times financially and economically he is finished. Therefore, either more and more provisions are to be made by the State Government and the local administration or there shall be cap on the fees charged by the private hospitals, which can be in exercise of the powers under the Disaster Management Act.”
Without mincing any words, the Bench then observes in para 7 that, “Despite the Guidelines and SOPs issued, for lack of implementation the Pandemic has spread like wildfire. A strict and stern action should be taken against those who are violating the Guidelines and SOPs, whoever he may be and whatever position the violator is occupying.”
To conclude, the Apex Court very rightly underscores that right to health includes affordable treatment. It also very brilliantly, boldly and bluntly minces no words to state it upfront that there should be cap on fee charged by private hospitals. Currently, we see how private hospitals charge so exorbitantly that even a middle class person as also some graded above them also find it extremely difficult to meet the expenses of the hospitals for even few hours what to talk about days or weeks leave alone the question of months! It must be said that there must be a cap not just on hospitals but also on lawyers many of whom charge exorbitantly due to which a common man finds it extremely difficult to pursue a case to its logical conclusion due to which the rich and the powerful have the last laugh!
By Adv. Sanjeev Sirohi