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Health Care Case Law in India

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Health Care Case Law in India Health Care Case Law in India A Reader Editors Adv. Mihir Desai Adv. Kamayani Bali Mahabal Centre for Enquiry into Health and Allied Themes (CEHAT) And India Centre for Human Rights & Law (ICHRL) Published in August 2007 By Centre for Enquiry into Health and Allied Themes Survey No. 2804 & 2805 Aaram Society Road Vakola, Santacruz (East) Mumbai - 400 055 Tel. : 91-22-26673571 / 26673154 Fax : 22-26673156 E-mail : [email protected] Website : www.cehat.org ICHRL 4th Floor, C.V.O.D. Jain high School 84, Samuel Street ( Pala Gali ) Dongri, Mumbai 400 009 Maharashtra Tel. : 23436692, 23435058 Fax : 23433698 E-mail : [email protected] Website : www.hrln.org Cover design by : Gunjan © CEHAT ISBN : 81-89042-53-X Printed at : Satam Udyog Parel, Mumbai-400 012. Contents Foreword ............................................................................................................................................ v Preface ................................................................................................................................................ vii CHAPTERS: 1 Right to Health and Health Care- Theoretical Perspective ................................. 1 Ravi Duggal 2 Fundamental Right to Health and Public Health Care ....................................... 17 Adv. Mihir Desai and Adv. Dipti Chand 3 Right to Emergency Health Care....................................................................... 37 Adv. Mihir Desai and Adv. Dipti Chand 4 HIV / AIDS and Law......................................................................................... 47 Adv. Vijay Hiremath 5 Issues in Medical Practice Care ........................................................................ 61 Adv. Mihir Desai and Adv. Dipti Chand 6 Medical Negligence .......................................................................................... 71 Adv. Mihir Desai and Adv. Dipti Chand 7 Drugs and Public Health .................................................................................. 87 Adv. Mihir Desai and Adv. Dipti Chand 8 Right of Workers to Occupational Health and Safety ........................................ 103 Adv. Mihir Desai and Adv. Dipti Chand 9 Environment and Health ................................................................................. 113 Adv. Vijay Hiremath 10 Mental Health Care ......................................................................................... 117 Adv. Mihir Desai and Adv. Kamayani Bali Mahabal 11 Reproductive Rights ........................................................................................ 127 Adv. Vijay Hiremath and Adv. Kamayani Bali Mahabal 12 National Human Rights Commission ................................................................ 139 Adv. Kamayani Bali Mahabal 13 Other Cases...................................................................................................... 155 Adv. Mihir Desai and Adv. Kamayani Bali Mahabal 14 Trends in Judicial Outcomes and Consequences for Health Care ....................... 163 Adv. Mihir Desai 15 Towards Establishing the Right to Health and Healthcare ................................. 169 Ravi Duggal Annexure 1 Cited Cases ................................................................................... 177 Annexure 2 Legal Glossary .............................................................................. 183 Annexure 3 Health Legislations ....................................................................... 189 Annexure 4 Important Court Websites ............................................................ 197 Annexure 5 Public Interest Litigation .............................................................. 199 Healthcare Case Law in India iii Foreword The Right to Health and Health care is a human right. It is true that we have included right to health and health care under Article 21 of the Indian Constitution, the Right to Life. However, the judiciary has not really been active in giving a direction in implementing this right. Till the advent of Consumer Courts / Forums, there were hardly any cases of medical negligence. Since then some cases have come to the Court. We have yet to develop our own medical jurisprudence in respect of cases on medical negligence and ethics. The questions of ethics go to the Medical Council but, I think, there is no transparency in their dealings with cases of medical negligence and ethics. The Courts on the other hand, are proverbially slow. Today in the era of globalization where public services are slowly being privately operated and open to market forces, access to them becomes a correlate of income distribution in which the poorer sectors have to fend for themselves in an increasingly unequal society. What we require is a large number of public hospitals with easy access for the poor, and public health care centres in every village rather than huge five star hospitals in every mega city. CEHAT and ICHRL have done an excellent job in bringing out this Reader and it is a commendable effort. The Reader provides a comprehensive treatment of the issue and deals with them in a lucid and yet exhaustive manner, offering key solutions to various problems. Clarity is the essence and the writers have condensed without sacrificing essential features of individual cases and principles discernible from vast canvas of controversial topics. It is a much needed contribution in the field of health and human rights and will be useful to social organizations, activists, lawyers and judges. Justice Hosbet Suresh, Retired, Bombay High Court. Healthcare Case Law in India v Preface The majority of the population of the country is excluded from any statutory recognition of right to health. Constitutional recognition can, at the highest, only provide the framework for further statutory inroads. Judicial pronouncements, then, acquire significance. With the advent of public interest litigation, a large number of issues concerning the poor and marginalized are being agitated in courts across the land. It is important to follow the thinking of the courts on these issues. Even though judicial pronouncements may not have the same breadth as statutory laws, they constitute the law as applicable in given situations. Besides, these pronouncements give legitimacy, recognition and social acceptance to various ideas and constructs which can be used for strengthening rights based campaigns around issues. This Reader mainly looks at the Constitutional recognition and judicial pronouncements. These case law form the foundation of the right to health care and can support any further public interest litigations on various other areas of public health. The attempt has also been to demystify the laws and make the information accessible to common people , so that the judgments can be used as an effective tool for demanding the right to health care. An awareness of these judgments does not mean that they will be implemented easily, but it is certainly important for further action and the evolving of future strategies, legal or otherwise, towards realizing the right to health. CEHAT has been working towards realisation of right to health and healthcare , through research and advocacy, for more than a decade. India’s legal framework is dualist (as against monist).International laws related to rights cannot be transformed and applied in the country unless there is appropriate domestic legislation. In 2000 with the launch of the Jan Swasthya Abhiyan ( JSA )/ People’s Health Initiative in India, civil society groups sought to prioritise the right to health and healthcare on its agenda. During the campaign for the right to health care, it was realized that in order to effectively use the various relevant judgements to realize the right to health as a fundamental right there was a need to create supportive legal documentation. This would also help to develop clear legal strategies for this campaign. India Centre for Human Rights and Law (ICHRL), together with a group of lawyers and social activists has been working on human rights especially the social, economic, environmental and cultural rights. CEHAT and ICHRL have productively collaborated to come out with this comprehensive Reader on Health Care Case Law in India. This Reader is a research output of CEHAT’s project on ‘Establishing Health as a Human Right’. The Reader is an outcome of the systematic and dedicated effort of a number of people. We would like to thank the authors of the individual chapters, Ravi Duggal, Adv. Deepti Chand and Adv. Vijay Hiremath for their contribution .The draft chapters have been painstakingly read by academics, activists and lawyers who were involved in the rigorous peer review. Our sincere gratitude to Justice B D Pandit; Justice Suresh; Adv. Sanober; Adv. Jaya Sagade; the Community Health Cell team from Bangalore, including Premadas, Rakhal, Naveen and Sathyasree; Mr Naidu and Janardhan from Basic Needs, Bangalore, and CEHAT’S Programme Development Committee who gave us their invaluable inputs that we have tried to incorporate. We accept, however, all responsibility for the remaining omissions and errors. We are thankful to Lina Mathias for her inputs in language editing to select chapters. We would like to extend our gratitude to eSocialSciences’ Editing Services for content editing. We also Healthcare Case Law in India vii express our sincere gratitude to Rashmi Divekar and Pinky Bhatt who have provided invaluable assistance in the final publishing of the Reader. Finally, this Reader would not have seen the light of
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