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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Devan Ramachandran, Kauser Edappagath, JJ.
Adv. Sabu P. Joseph – Petitioner
Versus
State Of Kerala Represented By The Chief Secretary And Ors. – Respondents
WP(C).No.10659 OF 2021(S)
Decided On : 10-05-2021
Drugs (Prices Control) Order, 2013 – Constitution Of India, 1950 – Articles 21, 47 – Kerala Clinical Establishments (Registration and Regulation) Act 2018 – Section 39 – Kerala Clinical Establishments (Registration and Regulation) Rules, 2018 – Rule 19 – Medical Requirements – Hospitals – Petitioner, in public interest, seeks that all hospitals in Kerala – in public or private sector – be directed to provide affordable, if not free, treatment to all citizens without discrimination – Petitioner projects various concerns, main among them being despondency faced by a citizen when he is denied health care assistance for want of sufficient hospital beds and infrastructure – He points out that number of active cases in Kerala is insidiously climbing every day and that admission and care in a Government Hospital/Facility is increasingly becoming difficult
Finding of the court:
Government Order, shall be implemented by Government and by officers/officials concerned forthwith and hospital admissions of patients suffering from COVID-19 in private hospitals after date of order would be strictly governed by rates and conditions mentioned therein – All private hospitals in State of Kerala, as regards 50% beds reserved for COVID-19 patients, would be bound be enjoined to offer treatment to such patients strictly as per rates stipulated in aforementioned Government Order and any violation thereof will be scrupulously dealt with by Authorities concerned, as prescribed therein and as per applicable Statutes – Government shall make sure that Grievance Redressal mechanisms, mentioned in paragraphs 2 and 3 of 'General Instructions' in Government Order, are implemented forthwith and that State Level Grievance Authority is also in place immediately – Incident Commanders appointed by Government, under provisions of Disaster Management Act, shall ensure that terms and conditions of Government Order are followed and implemented in its letter and spirit, by all private hospitals; and that any violations or infraction thereof is brought to notice of DMO or such other competent Authority without any avoidable delay – Every private hospital in State of Kerala will display rates of services to be given to public and in particular to a COVID-19 patient, as required under Section 39 of Kerala Clinical Establishments (Registration and Regulation) Act, 2018 read with Rule 19 of Kerala Clinical Establishments (Registration and Regulation) Rules, 2018 and will also publish price list of drugs required for treatment, under provisions of Drugs (Prices Control) Order, 2013 – Government shall consider setting up of a Toll Free number for State of Kerala, so that a citizen in distress can access that number and obtain best available options for treatment – Government shall consider augmenting hospital beds and wards to existing availability from time to time, depending upon number of COVID-19 patients reported; and for this purpose, they will also consider taking over suitable auditoriums/halls/hostels and such other, so that maximum number of deserving patients would obtain treatment without burden of having to pay even as per provisions of Government Order – If any private establishment is running a First Line Treatment Centre for COVID-19, they would be bound to do so strictly as per rates mentioned in Government Order as applicable to general wards and no violations of this will be permitted by any of Authorities under various statutes and said order – Court, however, make it clear that this shall be done by competent Authorities after strictly verifying credentials and eligibility of patients as per applicable conditions – No private hospital shall be entitled to charge for drugs, consumables -including PPE kits -essential instruments, like oxymeter etc., more than cost price at which it is procured by them (notwithstanding MRP); and court direct Incident Commanders and DMO to constantly watch this, by verifying purchase bills and expenses charged on to patients from time to time – Court leave liberty to private hospitals to approach Government for any concerns that they may have including with respect to reduction of their capital cost and expenditure like electricity, water, etc., and it will be upto Government to consider same, taking note of fluctuating circumstances presented by COVID-19 pandemic situation – Court reserve liberty to every COVID-19 patient to file complaint/s before Grievance Redressal mechanism mentioned in Government Order with respect to bills issued by private hospitals prior to it; in which event, Authority concerned will deal with them from stand point of over charging, profiteering and exploitative tendencies, however, without reference to rates mentioned in said Government Order – Decision in this regard shall be taken by Authority concerned at earliest, but not later than one month from date on which it is made – This is not an adversarial litigation, Court leave liberty to any party to approach this Court for an earlier posting and also to file appropriate applications for directions/ clarifications, if any, in future. –
Result : Order Accordingly
JUDGMENT :
The COVID-19 pandemic has poignantly demonstrated that health is not the business of a few – all must come together.
2. With the crisis expected to deepen before it improves, there are major foundational dimensions to health system and people's access to it.
3. The pandemic brings into focus two truths: First, health for all without unbearable financial burden is imperative; and Second, strong health systems to respond to evolving and continuing health crisis is unexpendable.
4. The pandemic is a wake up call for the Government, that it carries primary responsibility of its citizens' health as part of social contract, particularly that of the most vulnerable and marginalized sections.
5. The Government must, meaningfully and transparently, engage the whole of the society in their responses; especially because myriad issues are thrown up by the COVID scenario.
6. The need for a systematic approach to the complex challenges and for better understanding the relationship between population health and its economic consequences have been recognised as the basis towards sustainable solutions.
7. The 'second wave' of the pandemic brings back renewed focus on the content to right to life as the most acme component of Article 21, read with Article 47 of the Constitution of India.
8. In Paschim Banga Khet Mazdoorsamity & Ors. v. State of West Bengal & Anr. ((1996) 4 SCC 37), the Hon'ble Supreme Court explicated thus in paragraphs 9 and 16 thereof:
16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See : Khatri(II)v.StateofBihar, 1981 (1) SCC 627 at p. 631]. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view.”
9. Internationally, there can be little cavil that the right to life has been recognised as the most crucial element of meaningful life and its expanse and depth has found reflection in various Covenants and Instruments: namely, The Universal Declaration of Human Rights (1948); The International Covenant on Economic, Social and Cultural Rights (1966); The International Covenant on the Elimination of all Forms of Racial Discrimination (1965); The Convention on the Rights of Persons with Disabilities (2006) and ot
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