Appeal for inclusion of RIGHT TO HEALTH as Fundamental Right in India

Introducing the concept of the Right to Health:

Right to health is not enshrined in the Constitution of India as a fundamental right, although, it was indirectly mentioned in different articles of the Constitution such as directive principles of state policy. The World Health Organisation (WHO) says, ‘The highest attainable standard of health as a fundamental right of every human being’.  The right to health is the economic, social and cultural right to a universal minimum standard of health to which all individuals are entitled. The concept of the right to health has been enumerated in different international agreements and declaration. Among them are the Universal Declaration of Human Rights (1948), International Covenant on Economic, Social and Cultural Rights (1966) and the Convention on the Rights of Persons with Disabilities.

The Definition of Right to Health:

The preamble of the World Health Organisation constitution, 1946 defines health as a state of complete physical, mental and social wellbeing and not merely the absence of disease or infirmity. The constitution defines the right to health as the enjoyment of the highest attainable standard of health. Article 25 of the United Nations Universal Declaration of Human Rights, 1948 defines that 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. The United Nation’s International Convention on the Elimination of All Forms of Racial Discrimination, 1965 addresses the provisions of the right to public health, medical care, social security and social services. The right to health is also defined in the article 12 of the United Nation’s International Covenant on Economic, Social and Cultural Rights, 1966, which says the right of everyone to the enjoyment of the highest attainable standards of physical and mental health. In this connection the Covenant suggests the steps to be taken by reducing still birth rate, infant mortality and for the healthy development of the child, creating the condition which would assure to all medical services and medical attention in event of sickness.

Right to Health in the Constitution of India:

The Indian constitution doesn’t recognise right to health as a fundamental right. Although, article 21 of the Constitution of India guarantees a fundamental right to life and personal liberty, but the expression of ‘life’ in this article has a wider meaning. ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to live with human dignity, right to livelihood, right to health, right to pollution free air, etc.

Let us start the discussion from the Preamble of the Indian Constitution. The Preamble enjoins upon the State to secure social justice and “equality of status” to its people and promote ‘fraternity’ assuring dignity of the individual and thereby the unity and integrity of the Nation. Social justice and equality of status among the people marked by disparity shall remain elusive without taking care of the minimum needs of an individual and without the right to health, no individual can enjoy the dignity of life. Part IV of the Indian Constitution which is Directive Principles of State Policy (DPSP) elucidates the concept of right to health. Some provisions of the DPSP are directly or indirectly related to public health. Since, health is a state concern; the DPSP directs the states to take measures to improve the condition of health care of Indian citizens. Article 38 imposes liability on the state to secure a social order for the promotion of welfare of the people which can’t be achieved without right to health. Article 39(e) is related to workers to protect their health. Article 41 imposes to public assistants for those who are sick and disable. Article 42 further provides the responsibility to protect the health of infant and mother by maternity benefit. Article 47 spells out the duty of the state to raise the level of nutrition and the standard of living of each people as primary responsibility. Unfortunately, these are not listed in the constitution as a fundamental right. All the provisions mentioned related to health are under DPSP, which are the guidelines or principles given to the federal institutes governing the state of India to be kept in sight while framing laws and policies. These provisions contained in Part IV (Article 36 to 51) of the Constitution of India are not enforceable by any court of law. But, the principles laid down therein are considered irrefutable in governance in the country, making it the duty of the state to apply these principles in making laws to establish a society in the country.

What we need?

• The right to health/healthcare as fundamental right in the Constitution of India (to ensure quality and transparent healthcare services in India with more staff, space and system).

• Right to freedom of healthcare (to be healthy is a kind of freedom, freedom from diseases)

  

Why we need a fundamental right to health?

1. We need a separate Right to Health as fundamental right to uproot the problems associated with medical terrorism, to address the health crisis and at the same time have a transparent and quality health care service in the country.
2. Articles 38, 39(e), 41, 42, 47 of the Constitution of India do not guarantee the Right to Health enforceable by court of law. And Article 21 of the Constitution doesn’t clarify about what is meant by “life”.
3. Out-of-pocket expenditure on health because of the low insurance coverage and weak public health system is another key reason of poor health of Indians that ranks after Pakistan and Bangladesh with 57.57% out-of-pocket expenditure on health. The draft of National Health Policy, 2015 takes note of the fact that over 63 million people are faced with poverty every year due to overburdening health care cost alone as there is no financial protection for the vast majority of health care needs. We need the citizen of the country to be protected under national health insurance.
4. India has one of the highest disease burdens in the world. The Organisation for Economic Cooperation and Development (OECD) identified India’s poor health outcomes as one of our major developmental challenges. India is a laggard in health outcomes not just by OECD standards, but also by the standards of the developing world. In 2012, India witnessed 253 deaths per 100,000 population due to communicable diseases alone which is much higher than the global average of 178. India faces a higher disease burden than many emerging economies such as China, Brazil, Indonesia, Mexico and Sri Lanka.
5. Right to Education guarantees free and compulsory education for children in the age group of 6- 14 years. As a fundamental right under Article 21 (A) the 86^th Amendment act 2002, a new article 21 (A) for Right to Education was incorporated as a fundamental right. This act also led to the amendment of Article 45 in DPSP and Article 51 (A) on Fundamental Duties where after clause (j), the clause (k) was added to provide enough opportunity to continue compulsory education in the country. After this amendment which came in to force in 2010, this right became enforceable by court of law with assigned punishment for unlawful activities. With this Right to Education Act, a welcome change in the State’s position in the primary and secondary educational architecture has been noticed. In the same direction, there is a tremendous need to amend the Article 21 to incorporate Right to Health as fundamental right.
6. When the government, being a socialist democratic republic, provides all educational facilities including mid-day meal during school hours to the children between the ages 6-14 years, the children less than 5 years of age remain outside their reckoning. The less than five years mortality rate in India stands at fifty per one thousand live births in 2015-16 which has decreased from 74 in 2005-2006. A global disease burden study revealed that in 2016, 0.9 million children under the age of five died in India. Consider the recent case of Gorakhpur tragedy, a significant attention is required to improve the health care of children below 5 years, who have also the right to live with dignity. This children mortality rate is more than the rate of under developed countries like Nigeria, Congo. The situation is so pathetic that more than hundred children under the age of five die every hour in the country.
7. As per the record of NITI Aayog, Government of India, the maternal mortality ratio per 1 lakh life births is 167 in 2011-13, where Assam stands at the top with 300 mortality rates.
8. Another very important point is Doctor-Patient ratio in India as there is one government allopathic doctor for every 10,189 people, one government hospital bed for every 2,046 people and one state run hospital for every 90,343 people. The National Health Profile, 2017 published by the Government of India shows these statistics.  We don’t need an epidemic, however predictable, for the public health system to collapse. The shortage of health providers and infrastructure is the most acute. India has 1 million of allopathic doctors to treat its 1.3 billion populations and of them, just 1.1 lakh work in the public health sector. i.e. only 11 percent, to whom India’s nine hundred million rural population turn for treatment.
9. India doesn’t have enough hospital, doctors, nurses and health workers and since health is a state subject, disparities and inequalities in the quality of care and access to health varies widely not just between states, but also between urban and rural areas. In Russia, 98% population of the lower income classes have access to the free public health services, in comparison, only 17.33% lower income classes get public health facilities in India.
10. As found in a recent WHO report published in 2016, only one in five doctors in rural India are qualified to practice medicine. It says 31.4 percent of those calling themselves allopathic doctors were educated only upto class 12 and 57.3 percent doctors didn’t have a medical qualification. In India, self styled doctors without formal training provide up to 75 percent of primary care visits. The report also brought out that whereas 58 percent of the doctors in urban areas had a medical degree, only 19 percent of those in rural areas had such a qualification.
11. There are 462 medical colleges that teach 56,748 doctors and 3,123 Institution that prepared 1,25,764 nurses each year, but with India’s population increasing annually by 26 million the numbers are too little.
12. A Comptroller and Auditor General (CAG) report in June 2017 revealed that there is a shortage of 27.21 percent for clinical equipment and 56.33 percent for non clinical equipments, of which Oxygen supply is a part. The report also found the critical medical equipment had not been used for more than five years because there was no annual maintenance contract.
13. Nearly 2 million slum children die every year in India, 1 every 15 seconds. The highest number anywhere in the world where, more than half die in the month after birth and 4 lakh in the first 24 hours. According to WHO figures, India ranks at 171st out of 175 countries on public health spending.
14. “I solemnly pledge myself to consecrate my life to service of humanity” is the first sentence of the oath that a doctor takes when s/he joins the medical profession. They are considered as God knowing the fact that they are human being, as the profession gives ‘hope’ to live to a patient and his family in this earth. But with the increasing number of medico legal issues in the country, there is a serious concern about the doctor-patient relationship.
15. The rights of the patients drafted by the Trust, includes right to get the best possible medical care without discrimination; right to prompt, life-saving treatment; right to take part in all decisions relating to a patient’s health care; right to privacy; right to know the identity and role of people; right to dignity and to have caregivers respect; right to appropriate assessment and management of the pain of the patients; right to receive visitors; right to refuse treatment and to leave the medical center; and right to get necessary information related to the line of treatment as well as all health records. These rights of the patients need to be protected.
16. The responsibilities of the patients drafted by the Trust include the responsibility to refrain from misconduct and misbehaving with any medical service providers; responsibility to refrain from physical assault of any healthcare personnel or damage to property; responsibility to be truthful; responsibility to provide the complete and accurate medical history; responsibility to cooperate with the agreed line of treatment; responsibility to meet the financial obligations; responsibility to refrain from initiating, participating or supporting fraudulent and illegal health care practices; responsibility to report illegal or unethical behaviour; responsibility to get a post-mortem done of unnatural death and responsibility to discuss end of life decisions. These responsibilities also need to be enforced by law agencies.
17. A few demands that urged by the Trust, need to be incorporated for a quality and transparent healthcare services in India. The demands include CCTV surveillance in the hospital premises, ICU monitoring facility, availability of the indoor case file or ticket, recording of surgery, prompt action towards negligence issues, prevention of laboratory nexus, prescription of generic medicine, incorporation of a course on medical ethics and communication between doctor-patients in the medical programme, development of the skills of paramedical staff,  development of record-keeping mechanism on the cases pertaining to medical error and negligence, etc.
18. We need a constitutional mechanism for protection of health for all Indian citizens which includes prevention, treatment (emergency medical treatment, elective treatment and general counselling) and control of diseases as well as access to free of cost or affordable medical treatment, diagnosis and essential medicines.
19. The state expenditure on health is only 1.4 percent of the GDP which needs to be increased to atleast 10% of annual financial statement on health care considering the overwhelming number of recorded medical cases in the country. According to a 2010 World Bank estimate, India loses 6% of its GDP annually because of premature deaths and preventable illness.
20. Finally, it is a matter of serious concern for the entire nation that about 5.2 million medical injuries are recorded in India, of which around 98,000 people lose their lives every year. Approximately 3 million years of healthy life are lost in the country each year due to medical negligence, which is not acceptable at any cost.

 

Dr. Ankuran Dutta

Managing Trustee

Dr. Anamika Ray Memorial Trust, Guwahati