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On May 7, 2020, The Hindu carried a report on how private hospitals in Tamil Nadu, which have been designated as COVID-19 treatment centres, are charging distinct and exorbitant rates while offering treatment to patients affected by this seemingly omnipresent disease.
At present, in Tamil Nadu, the cost of treatment for COVID-19 in government hospitals is borne by the state, while in private hospitals, the patients have to bear the cost themselves.
Most private hospitals are not offering out-patient services for people with symptoms of COVID-19. They are straightaway admitted to isolation wards and their samples are sent for testing. Patients are confined in these hospitals for at least two days before the results arrive; this would mean footing a bill that goes up to Rs.70,000 per day. It is reported that the personal protective equipment (PPE) for doctors and staff have to be funded by the patients.
To this, room charges and other ancillary charges are added and we have a bill that goes up to Rs 14 lakh or more. The price cap in relation to administration of COVID-19 treatment fixed by the Ministry of Health and Family Welfare for private hospitals, needless to say, has gone for a toss.
At the other end of the spectrum are reports of the number of beds at government hospitals in Tamil Nadu being far too less to accommodate the rising number of COVID-19 patients. Even if the government were to proclaim that it has temporarily figured out facilities, the cases which seem to be on an incessant rise require more infrastructure, resources, man-power etc.
The key to resolving these dual predicaments lies in the Disaster Management Act, 2005.
Authorities under the Disaster Management Act, 2005:
The Disaster Management Act provides for the creation of Disaster Management Authorities at the Centre, state, and the district level. The Chairperson of the State Disaster Management Authority is the Chief Minister of the state. There is also a state executive committee headed by the Chief Secretary that functions and reports to the former. The Chairperson of the District Disaster Management Authority is the Collector/District Magistrate/Deputy Commissioner as the case may be.
Power of Requisitioning:
Section 65 of the Act is an imperative provision that enables the afore-mentioned state executive committee or the district authority or any officer duly authorised to requisition any resources or premises to effectuate a prompt response to the disaster and to enable rescue operations.
The committee/authority is also empowered to make such further orders as is necessary or expedient in connection with the requisitioning. This act of requisitioning is a temporary measure until the ‘disaster’ ceases. Section 66 of the Act also provides for compensation that can be given to the stakeholders.
Requisitioning of Private Hospitals
Requisitioning is the act of taking over of possession of property for a limited period. The Tamil Nadu government, by pressing Section 65 of the Act into service, can requisition private hospitals temporarily until COVID-19 pandemic ceases. Once these private hospitals are requisitioned by the government, the owners/management of such hospitals temporarily cease to have control, which is vested in the government.
The government can thereby solve the problem of depleting facilities at government hospitals. Significantly, this would mean ample and better infrastructure and resources at the disposal of the government to tackle the pandemic.
The word "resources" under the Act includes both men and material resources as well as "services", which includes facilities as well.
The expertise of doctors at private hospitals who are willing to work can be effectively utilised by all, regardless of economic status. Moreover, the problem of high treatment costs are automatically resolved once the government requisitions private hospitals in larger public interest.
Section 66 contains a mechanism by which compensation would be quantified and given to the persons in actual possession of the requisitioned premises or the owners, as the case may be. Thus, private hospitals can be granted compensation by the state.
It is not always necessary that the entire hospital needs to be requisitioned; requisitioning a portion of the hospital for the treatment of COVID-19 patients might suffice. Thus, the management of the private hospitals can continue operating so that their economic interests are not effected in entirety. This would effectively ensure a balance between public and private interest.
Private hospitals that have not been designated as COVID-19 treatment centers can also be utilised to provide quarantine facilities for asymptomatic persons. The act of sending asymptomatic persons to their own homes to observe self-quarantine may amount to over-estimation of an individual’s power of self control. Accommodating them in these quarantine centers under the watchful eyes of health workers is a more viable and pragmatic solution.
The need for institutional quarantine is further necessitated in the wake of the decision to bring back Indians stranded in foreign countries to their respective states.
Initiatives taken by other states
States such as Rajasthan, Chhattisgarh and Madhya Pradesh have in the month of March and April itself, commenced the process of requisitioning. The state of Rajasthan invoked the Rajasthan Epidemic Diseases Act, 1957 to requisition five private hospitals. Chhattisgarh has pressed into service the state’s Public Health Act, 1949 and have also framed rules under the Epidemic Diseases Act to suit and meet the contingencies of the state, and has in the process, requisitioned the Raipur Institute of Medical Sciences, a private institution.
The Government of Madhya Pradesh has requisitioned two hospitals for COVID-19 treatment and have also promptly framed rules under the Epidemic Diseases Act.
On 6 May, the District Magistrate at Gurugram, Haryana ordered immediate requisitioning of six private hospitals along with all medical and para-medical staff , equipment and infrastructure for COVID-19 treatment.
Though it is still open to the Government of Tamil Nadu to frame regulations under the Epidemic Diseases Act or take recourse to its Public Health Act, all it needs to do is to merely invoke Section 65 of the Disaster Management Act.
Extraordinary measures during extraordinary times
The Disaster Management Act is a self-contained code. The conferment of wide powers on the government, both Central and state, by the Act, has its root in the principle that extraordinary situations warrant extraordinary action. This Act, which operates throughout the currency of a disaster, envisages a fast-track process sans the rigour of procedure and other technicalities and ensures that public interest prevails over private interest.
Section 72 of the Act, which contains a non-obstante clause providing overriding effect to this legislation over and above other laws or instruments having the force of law, evinces this.
Norwegian playwright Henrik Ibsen once said that "a community is like a ship, everyone ought to be prepared to take the helm'. The management of private hospitals must realize that they have a paramount social responsibility to extend cooperation to the government and quit a business-like approach to health care during this time of crisis. Co-operation from all sections of the society, keeping in mind larger public interest, is the need of the hour to keep the ship of existence afloat in the battle against an invisible but deadly enemy.
The author is an advocate practicing before the Madras High Court.