Adopt law to enforce fundamental rights against private hospitals

Jivesh Jha and Nil Paneru 

(https://english.lokaantar.com/news/detail/14703/

Last few weeks, we have seen a severe violation of fundamental rights in the country. The Constitution of Nepal under Article 35(1) envisages that “Every citizen shall have the right to seek basic healthcare services from the state and no citizen shall be deprived of emergency healthcare.” Despite this mandatory provision, the citizens' right to healthcare has been grossly violated in broad daylight and that too during Coronavirus crisis.

Government hospitals decry of lack of ventilators, kits and other essential things required for testing and treating the persons infected with COVID-19, whereas the private hospitals lambast the government for not providing them essential equipments to fight the pandemic. Article 35(3) guarantees that each person shall have equal access to healthcare, meaning thereby, the state is obliged to ensure healthcare to all without any distinction. Nonetheless, the citizen’s right to healthcare has been compromised amid Coronavirus outbreak due to non-availability of health equipments. In this article, the authors will discuss about the grievances of the private hospitals and suggest the legal framework to regulate the private hospitals.

Firstly, the theory that only public servants perform public functions and that the private entities performing public functions cannot be held accountable for the breach of fundamental rights need to be re-examined. In fact, the constitution will lose its authority and dignity in a democracy, if there is no mechanism to address the question relating to violation of fundamental rights of citizens at the hands of private entities performing public functions. The question that remains unanswered is: whether fundamental rights relating to right to life or right to healthcare maintainable against private parties?

In fact, the state is under obligation to create an ecosystem where citizens are provided with opportunities to avail with fundamental rights without any hassles. In this age, the role of state has shrunken and liberal democracies have evolved a jurisprudence that allows private parties to run their service parallel to government agencies and perform similar functions. But private hospitals are often seen running away from responsibility and at times they refuse to treat patients. The question is that if private institutions are allowed to perform public functions, then why shouldn’t they be treated at par with government institutions in case of breach of duties?

Private hospitals’ grievances

The private hospitals lament that the government is not providing them with proper instruments, testing kits, PPEs, supportive equipments, relief in the interests of the loan, or any tie-up with specialised government aided hospitals. The government agencies are yet to come up with schemes for indemnity against clinical negligence. In England, Sections 11 to 13 of the Coronavirus Act, 2020 provide indemnity against clinical negligence claims for healthcare professionals assisting in the response to the outbreak, who would not otherwise be so indemnified.

The governmental schemes as to the protection and promotion of the rights and interests of the private healthcare professionals are yet to be devised. The government also has not succeeded in implementing unanimous pay for the healthcare professionals in private hospitals of the same status across the country, nor is there any compliance of labour legislations relating to minimum wages or equal pay for equal work.

Moreover, private hospitals fear that they will lose non-COVID patients if they start treating the patients infected with the virus. On the other hand, the fatality rate will increase with the mixing of COVID patients with others.

Most importantly, charges for the overall treatment, including the charges for the food and bed, should be fixed by the government; otherwise overcharging will cause more serious health impacts than that of Coronavirus.

What is required?

In absence of proper care at government hospitals, people of compelled to avail costly medical treatment at private hospitals. There should be a strong mechanism to regulate price lists of private hospitals. The governmental policy should oblige the private hospitals to publish their negotiated prices on their website and notice boards visible to the people. The price transparency rule would frustrate the overcharging trend. Doctor-patient ratio should also be fixed for the private players too. There should be concrete policy as to how many patients a doctor will see in a day.

The right to Public health service Act, 2075 (BS), which is enacted to enforce Article 35 of the constitution, nowhere prescribes express provisions regarding the monitoring, evaluation and regulation of private hospitals. Section 21 provisions that the procedure for the regulation of private hospitals will be as per the prescribed law. However, the said prescribed law is yet to be found. The constitution, under its Directive Principles of State Policies (DPSP), casts an obligation on the governments to endorse laws for regulating the private hospitals. But, the governments are yet to bring any law in compliance of this mandate.

There should be a legislative action to incorporate private hospitals within the ambit of state at the instance of infringement of fundamental rights. As the private hospitals operate their service which is of public in nature, there should be a law to regulate their business and impose liability at the instance of breach of duty or violation of fundamental rights of the people. Such an enactment would give a message that the fundamental rights can be claimed against any person or institution performing function which is of public nature.

If by the action of the private corporate bodies a person’s fundamental right is violated, the court would not accept the argument that it is not “State” and fundamental rights cannot be claimed against them, held the Supreme Court of India in the landmark case of Indian Council for Enviro-Legal action v Union of India [(1996)3 SCC 463].

In India, the Constitutional Review Commission Report, 2002 recommended an explanation in the meaning of ‘state’ envisioned under Article 12 of Constitution of India: ‘In this Article, the expression “other authorities” shall include any person in relation to such of its function which are of public nature.’

If this recommendation is something to stand by, every person, i.e., juristic person, performing public functions would fall within the purview of state and file a suit for violation of fundamental rights would lie against them. Unfortunately, the recommendation is yet to get stamp of approval from the government of India. Currently, the bone of contention is that why private institutions shouldn’t be held liable, like that of state institutions, for violation of fundamental rights?

The government should build a national narrative on this issue. You need civility, empathy, patience, good faith, good intention, conscience and tolerance to be a good citizen. The same is true for the private hospitals as well which is also an artificial citizen of this country.

The writers are Judicial Officers in Nepali judiciary.

Published on 19 August 2020