Failure Of Private Hospitals To Provide Timely Medical Treatment Is Also Violation Of Article 21: Patna High Court

The Patna High Court on Wednesday issued slew of directions while observing that the government hospitals, medical officers are duty bound to extend medical assistance and failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.

A division bench comprising of Chief Justice Sanjay Karol and Justice S Kumar issued directions in a clutch of petitions concerning the covid 19 situation in the State and also highlighting the issues regarding availability of medical infrastructure, covid medicines and dearth of oxygen supply.

The following directions have been issued by the Court:

- The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of even private hospitals to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21.

- The public representatives nominated vide Notification dated 1st of May, 2021 issued by the Additional Chief Secretary, Govt. of Bihar as also the functionaries of the State under the Registration Act, Municipal Act and the Panchayat Act shall take all steps ensuring implementation of the Government policies, including immediate registration of deaths, more so in the rural areas of Bihar.

- The State Government is hereby directed to take all necessary steps for proper implementation of the CRS, and responsibilities enunciated for units of local government under the Registration Act as also the Panchayat Act. All deaths must be reported within 24 hours. A true picture is essential for taking effective steps in defeating this pandemic Covid-19.

- We reiterate the importance and significance of shifting the focus to the rural areas so as to ensure that none is deprived of the medical health infrastructure in connection with pandemic Covid-19.

- The Ministry of Health, Government of India/appropriate authority shall, to the extent possible, favourably consider the request forwarded by the State vide communication dated 7th May, 2021 seeking enhancement of the quota of oxygen cylinders. The needful be positively done within next four working days.

- Equally, the State's request seeking enhancement of quota of oxygen (LMO) forwarded vide communication dated 10th of May, 2021 be favourably considered within very same period.

- The affidavit of the Commissioner of the District Buxar and Kaimur with regard to disposal of the bodies found flowing in the river Ganga be positively filed within next two working days.

- All concerned shall expeditiously take appropriate steps and pass orders for interim release of the case property seized in the shape of oxygen cylinders, which are necessarily required for saving human life. The needful be done as per law ensuring its identification during trial.

- Municipal authorities are directed to take steps for proper collection, treatment and disposal of waste generated from COVID patients in home isolation.

- The process of procuring C.T. Scan equipment is directed to be expedited.

- The Chief Secretary, Government of Bihar shall file a fresh affidavit, furnishing complete information in a format (tabular chart) prepared by all the learned counsel in terms of our direction. Needful be positively done within next four working days, failing which, we shall be constrained to ask him for joining the proceedings through a digital mode.

- Fresh data be furnished to this Court, with respect to RTPCR, positivity rate and death etc., making clear the geographical locations, Urban and Rural designations and also, the number of (a) Covid Care Centres (CCC); (b) Dedicated Covid Health Centres (DCHC); (c) Dedicated Health Centre (DHC) or for that matter the private hospitals in each one of the districts. It is to be noted that the information furnished must pertain to the second wave of the pandemic, beginning March 1, 2021.

- It is open for the parties to respond to the affidavits dated 06.05.2021; 09.05.2021 and 11.05.2021 filed by the Chief Secretary, Government of Bihar.

Right to Health and Responsibility of State

Highlighting that the right to health including access to basic medical infrastructure, is a facet of Art. 21 of the Constitution which the State is duty-bound to provide, the Court observed thus:

"Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21."

Perusing the affidavit filed by Chief Secretary, Government of Bihar dated 9th May, the Court opined that the same was "conspicuously silent" on the issue of availability, requirement and distribution of Oxygen and disposal of bio-medical waste generated out of all operations concerning Corona Virus.

During the course of hearing, Senior Advocate Vikas Singh highlighted the issue of non-availability of the oxygen cylinders equired for transporting the Oxygen from the storage point/ special carrier vehicles up to the users.

On the other hand, Advocate Anshuman Singh appearing for Union of India apprised the Court that the Centre was doing allocation in that regard and that as on 29th April, 10088 Cylinders were allotted to the State and an assurance was given that by the first week of May, 2021, it would be further enhanced.

At this juncture, the Advocate General apprised the Court that the Chief Minister in consultation with senior ministers was monitoring the situation.

Considering the notification dated 1st May 2021 stating that elected representatives including Minister or MLAs were made in charge of each district to deal with the covid situation, the Court observed thus:

"Well the issue, purely falling within the domain of the political executive, we only hope and expect that such elected representatives, true to their oath of office, discharge their duties and obligation at the ground level. For they alone can instill confidence in the minds of public."

On Black Marketing and Hoarding

On the aspect of black marketing and hoarding of e medical equipment, including oxygen cylinder, the Court observed thus:

"We refrain from commenting on such human conduct, save and except direct all the functionaries to forthwith, interim release the case property per law. We see no reason why such proceedings are not conducted through virtual mode, considering that the case property is vital for saving human life and is also required to be proven during trial."

On Covid Situation in Rural Areas

During the previous course of hearing, the Court had expressed its desire the shift its focus from urban areas to the rural areas and in view of this, directed the State to furnish correct and complete information.

In view of this, an apprehension was expressed by the State that the Court might be exceeding its jurisdiction as the same falls purely within the domain of the executive.

"We are afraid it is not so, for as a Constitutional Court collectively, we hold the responsibility to ensure that the State's people, regardless of their geographical location, do get timely aid ensuring no loss of human life purely on account of lack of medical health infrastructure. We clarify that the Court is not venturing into a roving enquiry but seeks information only in the context of peculiar geographical and demographical diversity of the State of Bihar, which has a landmass of 94163 square Kilometre with River Ganga freely passing through with almost seven tributaries, flowing both from north and south, making it a delta of the Gangetic plain. During monsoons, all low lying areas, North of Bihar, especially in the Mithila area, is often inundated." the Court observed at the outset.

Looking at the district wise breakup of population living in urban and rural areas in the State, the Court opined that the same revealed that almost 90% of the population lives in the rural areas.

"It is not that Corona Virus affects only the urban population. It is also not that it does not affect rich or the poor living in the rural areas. Infrastructure right from testing up to isolation must exist in the rural areas, more so in view of anticipation of the third wave, as per the experts of the Government of India, which is likely to come soon." The Court observed.

In view of this, the Court directed the Chief Secretary, Government of Bihar to file a fresh affidavit indicating District-wise breakup of the activities undertaken and the existence of the infrastructure in dealing with the second covid wave.

"Gathering such information is not difficult for everything is in a digital form, be it testing; hospitalization; distribution of life-saving drugs; infrastructure in the shape of oxygen cylinders, beds, ventilators; recovery and deaths of persons affected with the virus etc." the Court observed at the outset.

Opining that there is no data to indicate the number of deaths that have taken place in Bihar during the second wave of the Pandemic, the Court went ahead to observe that "Any death, more so, in the rural areas for lack of access to a medical facility, including testing in a violation of fundamental right."

In view of this, the Court ordered:

"We understand that the Executive are busy conducting operations, be it planning or its execution at different levels with dealing with the Pandemic. At this point, we deem it prudent not to interact with them directly. But, failure to furnish information, complete in all respect, may prompt us to do so."

Read Also: Patna High Court Seeks State's Response On Availability Of Medicines, Oxygen Cylinders And Black Marketing

Read Also: COVID- Our Responsibility Is To Ensure That People Are Provided With The Healthcare They Need: Patna HC Seeks Bihar Govt's Response On Several Issues

Click Here To Read Order