Centre's Formula To Allocate Oxygen To States Based On Hospital Beds Needs Rethink : Supreme Court

The Supreme Court on Wednesday observed that the Centre should consider revisiting its formula which computes the liquid medical oxygen requirement of the states/UTs based on the number of ICU/Non-ICU beds.

The bench of Justices D. Y. Chandrachud and M. R. Shah recorded the submission of Solicitor General Tushar Mehta that an expert group has been constituted by the central government comprising Dr. V. K. Paul, (doctor and Member, Niti Aayog), Dr. Randeep Guleria (Director, AIIMS), the Director General, ICMR and the Director General, Health Services for computing the requirement of oxygen on a pan India basis. The expert group has devised a formula for computing the same, proceeding on the premise that 50% of the non-ICU beds require 10 litres of oxygen per minute and hundred percent of the ICU beds require 24 litres per minute.

The bench named, as one of the four dimensions of the problem of oxygen supply, this methodology for computing the requirement of oxygen to the different states and Union Territories in India.

"The formula devised by the expert group proceeds on the basis of a certain requirement of oxygen per minute for ICU and non-ICU beds. Accordingly, the allocation is made to the states. The purpose here is not to find fault with the expert group or the Union of India. We only wish to point out that in view of the experiences which have been had since the formula was put into motion, it is necessary for the Union of India to rethink the formula and determine if further consideration is required to meet specific requirements", the bench has said.

The bench expressed the view that the one aspect which needs to be aligned is that the formula ties the requirement of oxygen to the beds- "Other than the formal, institutional framework, there are also individuals in need of oxygen who are not in such hospital environment. It is not adequate to anticipate the need of oxygen based on the number of beds, using the formula thus far employed by the UOI. This is certainly a matter in which the government may engage fresh attention of the body of experts in view of the dynamically evolving situation"

Solicitor General Tushar Mehta pointed out that the formula calculates the oxygen requirement not only based on the number of beds but also takes into account the number of active cases.

On Wednesday, on the basis of this formula, it was argued by the SG that the optimal demand of the GNCTD should be 415 MT and that the 707 MT as demanded by the Delhi government appeared to be contrary.

"Only 50% of the non-ICU beds need oxygen. So only 8136 non-ICU beds in Delhi require oxygen. And this oxygen at the rate of 10 L per minute. So the estimate comes to 152 MT of oxygen. 100% percent of the ICU beds need 24 L oxygen per minute. So, for ICU beds in Delhi, the requirement is 268.3 MT. The total comes to 415.3 MT", the SG had submitted.

"The figure of 707 which the Delhi government calculated does not reflect any justification. Every state had demanded more but the allocation is on the basis of this formula", he argued, adding in the same breath, "Not that I am going back my word of supplying 700 MT"

"We are not debunking the formula. Of course, it has been devised by learned people. But it is based on the assumption that hundred percent of the ICU beds need oxygen and 50% of the non-ICU need oxygen. It is possible that more non-ICU beds need oxygen...It (the premise of the formula) is also not true for every state, it depends upon the stage of pandemic in the different areas. The situation in Orissa would be very different from Delhi or the state of Tamil Nadu or Maharashtra. Even within the state, it varies across districts. When Mumbai was seriously affected, there were other districts in Maharashtra which were suffering in lesser gravity. We can't have a general assumption", said Justice Chandrachud.

When the SG suggested the NCT of Delhi may even manage with the supply of 550 MT as was made on May 4, submitting that the Centre does not have an unlimited source of oxygen, the judge had said, "Institutionally, we can't accept this. Our order was for 700 MT. We cannot go behind it. We are answerable to the citizens. We don't know what is happening on the ground with the 550 MT (as supplied to Delhi on May 4). We are not in touch with private citizens as much as you are. Our friendships are limited. But the lawyers are saying every day, 'Do something. We are dying'. We cannot just go by the number of beds (to determine O2 requirement). There are patients outside hospitals also and at their homes who have been unable to secure a bed. We have to look at the practical requirement"

At this point, Senior Advocate Jaideep Gupta, who has been appointed as the amicus curiae in the suo-moto case,  that there are hundreds and thousands of patients even outside hospitals who are unable to secure a bed and who also need oxygen. Justice Shah concurred that the court "cannot go by the number of beds".

At this, the SG advanced, "Even the allocation made bed-wise is not static. It is dynamic. This is a rough and ready formula that we came up with as there is a limited quantity of oxygen. But, for example, if we are dealing with the state of MP and the Chief Secretary says that 700 MT is needed, we may allocate some amount. Subsequently, we may decrease or increase this amount based on the requirement. This is done on a real-time basis. This is done so we can create a buffer stock"

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