Penury in the midst of a pandemic: A nation's struggle for affordable healthcare

The second wave of COVID-19 has emerged to be deadlier than the first one with shortages in medical facilities and people running in search of oxygen and beds. It is disheartening to see the long list of bills which has forced people to save the lives of their loved ones by seeking monetary help on social media.

Avinash (name changed), a 24-year old from Delhi, in order to arrange money for his hospitalised father, took to a social media platform called Ketto, when all his finances were exhausted. He was asked to pay Rs. 40,000/day which exceeds even his monthly salary. As much as the results on the internet are heart-warming, we need to address the question why?

Why is our citizenry crowdsourcing help in the first place?

Instances of overcharging

The Delhi High Court while addressing a petition, stated that prima facie the BiPAP machine, monitors, oxygen, etc all ought to have been part of the ICU package but were charged separately to the tune of thousands of rupees and therefore, the issue raised of overcharging was “serious”.

Senior advocate and amicus curiae, Rajshekhar Rao told the court that according to his research, several private hospitals were refusing to admit patients, even if they had cashless insurance cover, unless they deposit Rs. 50,000.

Similarly, both the Kerala and Madras High Court came across several instances where patients were charged exorbitantly in private hospitals regardless of price capping for Covid-related services by the State. Some hospitals had charged around Rs.1,00,000/- per day in Madras, where they could charge only a maximum of Rs.15,000/- per day as per existing norms.

Orders and non-compliance

States like Kerala, Tamil Nadu and Uttar Pradesh, under a government order, have mandated private hospitals to allocate a minimum of 50% of total bed strength exclusively to treat Covid-19 patients and have asked the authorities to check if private hospitals had prominently displayed the rules and charges on their premises for the knowledge of the public.

Courts across the country have ordered the state governments to submit their response relating to details of the entire cost borne by the patients along with its price cap for the treatment and has also mandated the presence of a redressal system to check overcharging by private hospitals.

But the government, displaying a supine attitude, has not paid any heed to the same and there is a drastic increase in the number of cases where private hospitals continue to charge hefty sums. It is of paramount importance to examine the reasons for such rampant non-compliance.

What does the law say?

Rules of procedure are the handmaids of justice and hospitals should follow proper procedures laid down by the state governments to ensure justice and equitable treatment to the people of this nation.

Article 21 of the Constitution provides for Right to Life and Liberty which also constitutes the basic necessity of health and its facilities. The interpretation of the article by the judiciary has been liberal to include living with dignity and decency and thereby every citizen enjoys the fundamental right to life and should not be deprived of the same.

By virtue of Part IV of the Constitution, it is the responsibility of the State to ensure social and economic justice to its citizens and under Article 38 that lays down the responsibility of the State to secure social order for the promotion of the welfare of public health.

Article 47 imposes a primary duty of the State in improvement of public health, in securing justice, extension of benefits pertaining to sickness, disability, old age and maternity benefits.

According to the court in Bandhua Mukti Morcha v. Union of India, DPSP holds a persuasive value. It was also stated by the court in this case that dignity and health comes within the ambit of life and liberty under Article 21 of the Constitution of India.

Article 21 on one hand gives the right to life with dignity and on the other it imposes a duty on the state as also provided under Article 47. It is pertinent to note that in the State of Punjab & Ors Vs. Ram Lubhaya Bagga, the Honourable Court regarded health to be a sacrosanct, sacred and valuable right.

Thus, it emerges that owing to Article 21 there is a right to dignified treatment for health and hence the duty bound government needs to ensure that no hurdles pave its way through it.

Under the Disaster Management Act, 2005, citizens can seek help from the right forum for the redressal of their grievances or for seeking information under the Act. The cognizance of the offenses under this act would be under the National, State, District, and Local Authority for speedy and fast redressals.

Kerala and Tamil Nadu under their respective Clinical Establishments Act and Rules, mandate Grievance Redressal officers to investigate cases where private hospitals are charging unusually high fees.

In Sachin Jain v Union of India, a writ petition was filed to enquire into the usage and applicability of the “Ayushman Bharat Scheme” for the treatment of the COVID-19. The Court was also requested to understand whether private hospitals were following the "only cost, no profit” basis while treatment.

A 2007 judgment of the Delhi High Court was relied upon by the petitioner which had “condemned the conduct of various hospitals in the capital for not adhering to their social commitments despite receiving benefits from the government.”

It was pleaded that the hospitals built on public land should provide pro bono publico services as the nation battles against a pandemic with limited resources.

The act of overcharging by private hospitals is not only condemned but also can be taken as a criminal offence under Section 420, IPC for cheating and dishonestly.

Preparation for the third wave

Considering the inevitable third wave, there is a dire need to create awareness about what can be done by the government as well as the citizenry at the earliest possible time when faced with such a situation of corruption and inhumanity.

The public serving authorities should step into their main role of intolerance against any inconvenience faced by the people of this nation.

Following the footsteps of Kerala and Tamil Nadu, other states can also provide a formula for capping rates and making it available on an online portal for the reference of the public. An extra column can also be added to show the maximum charge per day in private hospitals for beds and treatment in isolation wards and ICUs. The State should also make the vaccine equally available to all irrespective of the recipient's capacity to pay.

Strict action should be taken against hospitals that are charging more than the amount decided. Infact, vaccines should be made available for free even in private hospitals, following countries like the USA.

The citizenry on the other hand can reach out to the concerned Grievance Redressal Officers when needed. Under the Disaster Management Act, 2005, you can seek help from the right forum for the redressal of grievances or for seeking information under the Act.

You can also use the e-governance site under the name of COVID India Seva, which aims at providing an interactive method and platform for direct communication between millions of people to seek information, pose queries and get a response from the Government in real-time.

Home care treatment is not covered by default in every health insurance policy. Hence, if you feel the need of home care treatment, take note whether the policy provides domiciliary treatment as a feature. If not, you may upgrade it by porting it to a new policy that has this feature.

Recently, the Health minister along with Defence Minister Rajnath Singh has launched the COVID therapy drug, 2-deoxy-D-glucose (2-DG), for emergency use. This drug would help patients in overcoming oxygen dependency by around 40%.

Getting vaccinated is the only way to fight the Pandemic and so please get yourself vaccinated at the earliest.

It is heart wrenching to see the devastating state of affairs in the country and how some people are seen making profits out of a poor man's pocket. Humanity is in the dearth of existence, where we should all work shoulder to shoulder, some of our counterparts have fallen apart to fill their own pockets.

Strict action should be taken against those in non compliance so that they refrain from doing any such activity in the future since corrupting the pockets of authorities and evading from any such strict action leads to gross failure of justice.

Knowledge is power and so you can do your bit by educating others and making them aware of their rights.

(The authors are final-year LL.B students at the Campus Law Centre, Delhi University)