The present situation of Covid-19 Pandemic in India and response of emergency medical services has led me to try and find out how law can help in providing emergency medical care to patients in future. We have been witnessing how patients are being refused admission in hospitals despite advised by the doctor to be hospitalised as they are in critical condition requiring immediate medical attention and critical care, Thousands of persons have died due to lack of ICU beds and oxygen.

It was the utmost duty of elected government to provide medical aid to its citizens and by not providing adequate medical aid the valuable right to life as enshrined in our constitution has been violated by government. It is fundamental right of every citizen under Article 21 of Constitution of India, that no person can be deprived of his life and personal liberty except according to procedure established by law. However denying a person in need of immediate medical attention/critical care is nothing but violating his right to life. To my mind Government is directly responsible for causing death of a person, for failure to provide adequate medical care.

This leads us to another question, whether Indian government has created any data base of hospitals and Nursing homes having Intensive Care Units and number of ICU beds in each of them? Whether any survey has ever been conducted to understand how many critical care hospitals and Intensive Care beds are required in India proportionate to population in particular states?

If answers to these questions are in affirmative, than another question arise as to what action has been initiated by government to provide adequate intensive Care Units in each state. It is not only ICU beds but in case of infectious disease more particularly Air borne infection such as Covid-19, ICU beds in Negative-pressure isolation room are required. The purpose of negative-pressure room is to confine pathogens to a single closed environment with direct exhaust of air from the room thereby preventing the release of patient generated pathogens in to adjacent spaces.

I have not come across any national Health Care Policy implemented by Government of India.
Now coming to law on the subject of providing emergency medical care to a patient. The Hon’ble Supreme Court of India in case titled as Pt. Paramanand Katara v/s Union of India & others,1989(4) SCC286, for the first time dealt with the issue of providing medical care to a patient in emergency. It was held by the apex court that medical aid to an injured person to preserve his life is the obligation of state as well as doctors. The said case was relating to accident victims who were refused primary medical aid by hospitals being medico-legal case.

Thereafter another landmark judgment was passed by Hon’ble Supreme Court in case titled as Paschim Bengal Khet Mazdoor Samiti & others versus State of West Bengal & Another,1996 SCC(4)37. This was a case where one labourer suffered brain haemorrhage after falling from train. He was taken to Primary Health Centre, since necessary facilities for treatment were not available at the Primary health Centre, he was referred by medical officer to nearby Government hospital for better treatment.

The injured Labourer was taken to another hospital where his X-Ray was done and was required to be admitted immediately for treatment of skull injury. However he was not admitted in the said hospital due to lack of bed in emergency. The injured was then taken to another hospital in Calcutta but was not admitted due to lack of bed in hospital. Aggrieved of being denied admission in hospitals for lack of bed and callous attitude on the part of medical authorities at the various state run hospitals, he filed writ petition before Hon’ble Supreme Court of India.

The primary question before apex court in the said writ petition was:
Whether the non-availability of facilities for treatment of the serious injuries sustained by the petitioner in the said case has resulted in denial of his fundamental Right guaranteed under Article 21 of Constitution of India?

It was held by the apex court that Article 21 of constitution imposes an obligation on the state to safe guard the right to life of every person. Failure on the part of government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21.

It was also held that failure to provide adequate medical attention in emergency is deprivation of constitutional rights guaranteed under part III of the constitution and adequate compensation can be awarded by the court for such violation by way of redress under Article 32 and 226 of Constitution of India. Reference was made to case titled as Rudal Shah v/s State of Bihar,1983(3)SCR 508 AND Nilabati Behara v/s State of Orissa,1993(2)SCC 746. The Hon’ble Supreme Court granted compensation to the petitioner.

The most important part of the judgment was the directions given for remedial measures to rule out recurrence of such incidents in future and to ensure immediate medical attention and treatment to persons in real need. As per the committee constituted by the Supreme Court number of recommendations were made and most important was,

A Central Bed Bureau should be set up which should be equipped with wireless or other communication facilities to find out where a particular emergency patient can be accommodated when a particular hospital finds itself absolutely helpless to admit a patient because of physical limitations. In such cases the hospital concerned should contact immediately the Central Bed bureau which will communicate with the other hospitals and decide in which hospital an emergency moribund/serious patient is to be admitted.

It was also observed by Apex court that it is joint obligation of centre and the state to provide medical services.

Now coming to another serious issue being faced by citizens of this country during second wave of pandemic. We have seen people selling crucial medicine, Oxygen and other necessary medical devices for treatingCovid-19 Patients at exorbitant price.

There is black marketing and hoarding of medicines and Oxygen etc. The government has failed to check black marketing on the contrary political leaders in order to win votes have taken huge stocks of emergency medicines for Covid patients and distributing in their constituency illegally. The drugs are classified as essential Commodities under Essential Commodities Act and contravention of provisions is punishable offence. But as we know ruling party will never take legal action against its own leader and law is only meant to punish general public.

The Government has not learnt from experience of China and United States of America during Pandemic. The magnitude of Pandemic was similar to what we are experiencing today. China built temporary hospitals with in few days with all emergency facilities for patients, none of them were denied admission in hospital nor any one died due to shortage of ICU beds or Oxygen.

However Government of India was busy in election campaign to somehow win West Bengal and other states at the cost of lives of its citizens. Here I must refer to Madras High Court order where it has been observed that officers of election commission of India asre liable for murder as they failed to take appropriate action during election campaign The political bosses has no regard for human life and in order to please particular section of society they allowed Kumb Mela where millions of people gathered in complete disregard to Covid protocols and violated directions under Disaster management Act.

At the end I would say that we need a comprehensive emergency medical services policy for pandemic like situations. India should learn from countries like United states and United Kingdom to prepare itself for future pandemic like situations.

Written By: Hitender Kapur, Advocate