Right to Health: A Fundamental Right
Article 21 of the Constitution of India states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
The relation between the right to medical care and Article 21 played out intensely during the pandemic when the State was not able to manage the crisis and many people were left without any proper resources and help.
Precedent and Previous Schemes of the Government of Rajasthan
In case of State of Punjab v. Mohinder Singh Chawla, the Supreme Court in 1996 stated that the right to life include within its scope the obligation of the State to provide proper health services.
In 2018, the National Commission on Human Rights framed a Charter of Patient Rights to be executed by the State Government. Under the Mukhyamantri Chiranjeevi Swasthya Bima Yojana, health coverage is provided in over 1,550 private and public hospitals across Rajasthan. Under the Yojana, insurance coverage is provided for certain types of treatment1 . The Rajasthan government through recent Budget 2023 have revised the Chiranjeevi Health Insurance Scheme by increasing the amount of medical cover from rupees 10 lakhs to rupees 25 lakhs.
The Rajasthan Right to Health Act, 2023: Detailed scrutiny of the provisions
From the publication of the draft bill, a sense of insecurity amongst doctors ignited. The preamble of the bill states ‘to provide for the right[s] to health and to make provisions ancillary, conducive and incidental thereto’2.
The Act provides for residents of Rajasthan to avail free health services in any clinical establishment. Any person in the State can avail free outdoor and indoor patient department services, consultations, medicines, and diagnostics in public health institutions, emergency treatment and care at all healthcare providers without prepayment, and access to referral transport by all healthcare establishments. Residents can also avail free transportation, free treatment, and free insurance coverage against road accidents at all healthcare establishments. However, this raises a few issues.
Rights guaranteed to the resident of State of Rajasthan under the Act: Section 3 of the Act
The new Act promises certain rights to every resident of the State, which are as follows:
- Right to avail free OPD and IPD services, consultation, drugs, diagnostics, emergency transport, procedure and emergency care provided by all public health institutions as prescribed by rules made under the Act
- All residents will be entitled to emergency treatment and care without prepayment or police approval in case of medico-legal cases.
- To have relevant and adequate information about the nature and cause of illness, proposed investigation, and care, expected results and complications of the proposed treatment, and cost of treatment suggested. And in addition, the patient has the right to know the information about the person attending or providing healthcare to him regarding his name, profession and job chart.
- Also, to be informed priorly and to take consent for certain tests or treatments, like surgery or chemotherapy, etc.
- The Act ensures the right to privacy, confidentiality, and human dignity during treatment. In case of female patients, the presence of a female is required during a physical examination by a male practitioner.
- The patients have the right to know the rates or charges of the services provided and to choose any alternative treatment at any healthcare establishment.
- The Act gives the right to patient education regarding health conditions and to have a treatment summary in case of leaving a healthcare establishment against the medical advice or to have a second opinion.
- Residents can avail free treatment, free insurance coverage and free transportation in case of road accidents at all healthcare establishments. [subject to terms and conditions which will be specified in the rules
The areas of concern vis-à-vis Violation of Fundamental Rights
Violation of Article 19(1)(g)
Under this Act, residents of the State have the right to avail free health care services from any establishment including clinical establishment (Clinical establishment is defined under section 2(c) of the Clinical Establishment (Registration and Regulation) Act, 2010). Therefore, this also includes private institutions or establishments. The critical issue that has been arising is that the Act does not specify if the State will reimburse private establishments for the expenses that will be incurred by private clinics in providing free services. As a result, this Act may violate Article 19(1)(g) of the Indian Constitution, as Article 19(1)(g) guarantees the right to practise any profession and carry on any occupation, trade, or business.
An obligation to provide free services to every resident of the State without any government reimbursement will affect the generation of revenue for the organisation, and therefore it will shut down.
Violation of the Right to Privacy
As per the Act, a web portal or helpline centre will be set up for filing complaints on denial of services and infringement of rights. The District Health Authority will take unresolved complaints, take appropriate actions, and update the action taken report on the web portal within 30 days. The Act does not mention who will have access to the report on the web portal. Therefore, there may be a chance of infringement of a patient’s right to privacy.
The Financial Memorandum of the Act
The Act does not talk about the costs related to any of the important factors such as
- Human Resources
- Infrastructure Development
- Public Health Functions
- Reimbursement to private establishments
- Or any other costs for providing free healthcare services to every resident in the State and its implication might increase the financial obligation of the State.
Doctor’s Contentions vs. State’s Replies
|S. No.||Doctors’ contentions||Government replies|
|1.||Private and Public hospitals have to provide emergency treatment and care in case of accidents, snake bites, dog bites, or any other, as notified by the State Authority.||The Government will reimburse the cost of treatment if a patient cannot pay.|
|2.||Who all are included in the healthcare establishment?
||The Act reviewed the definition under Sec.2(m) as:
|3.||Hospitals are already overburdened by 54 licenses and this Act will add more responsibility to them.||The government promised to provide a single window system for licenses and other approval for hospitals.|
|4.||Unnecessary interference with the redressal mechanism.
||The government made sure of the presence of two IMA representatives in the redressal mechanism, therefore there will be no such unnecessary interference with the redressal mechanism.|
|5.||The Act is putting an unnecessary load on the private sector to provide healthcare services as the Act obligates them to provide emergency services and government-funded healthcare services, despite being clear on various provisions burdening the private sector.||The Government replied that it will not overburden private sector healthcare rather the provisions are to boost the public healthcare infrastructure and protection to patients’ rights.|
The Rift Resolved: Consensus between the parties
The rift between private doctors and the government of Rajasthan has been resolved. The outcomes of the meeting are as follows:
- Private multi-specialty hospitals with less than 50 beds are excluded from the ambit of the Act.
- Private hospitals without any government facility as in land or building at subsidized rate will also be excluded from the Act.
- Hospitals to be covered under the Act are:
- Hospitals by private medical colleges
- Hospitals on PPP (Public-Private Partnership) model
- Hospitals that have taken government facilities (free of cost land or on subsidiary rates)
- Hospitals run by trusts (funded by the government in form of land or building)
- Considering regularizing the hospitals in different locations across Rajasthan based on the quota model.
- Single window system for licensing and other approvals for hospitals.
- Considered renewal of Fire NOC in every 5 years which was 1 year earlier.
- In case of any other changes, 2 (two) representatives from IMA will be consulted.
- Any police charges or any other cases registered during agitation are to be withdrawn.
Conclusion and Way Forward
The doctors called off the protest and returned to their work. The rules supporting the Act are yet to be framed. The government ensured that the rules will be framed in accordance with the provisions of the Act and the consensus agreed in order to balance out the interest of both doctors and patients.Notes:
- “Purpose of Scheme” Mukhyamatri Chiranjeevi Swasthya Bima Yojana, Government of Rajasthan, as accessed on January 17, 2023.
- Bill no. 21 of 2022