By Srihita Vala and Abhinav Gupta
Introduction
The manner of treatment for COVID-19 by hospitals, and the measures taken by the Central and State governments for patient care have come under scrutiny with various reports suggesting deficiencies and lapses in the measures and policies.[1] These reports raise various concerns such as overcrowding, lack of funding, and insensitive approach by health officials.[2] Based on many such reports pertaining to inhuman treatment of COVID-19 patients at the LNJP hospital in Delhi, the Supreme Court (‘the SC’) on June 12, 2020, took suo moto cognisance of the situation in the states of Delhi, Maharashtra, Tamil Nadu, West Bengal, and Gujarat.[3]
The three judge bench rendered its order on June 19, 2020, and observed that though the States have on record issued necessary guidelines, there is an absence of a mechanism for constant supervision of the hospitals and measures for improvement in treatment of patients.[4] Therefore, the SC issued 11 directions to the Central and the State governments with the object of continuous monitoring of government hospitals, COVID-19 dedicated hospitals, and other hospitals handling COVID-19 patients.[5] These directions include setting up of Expert Committees comprising doctors to inspect hospitals at least once a week,[6] installing CCTV cameras in every ward for bringing in transparency in treatment,[7] and permitting attendants to stay in the hospital area.[8] The court also issued directions for setting up of helpdesks, which are accessible both physically and through telephone, to provide information about admitted patients.[9] Further, the SC ordered the union government to issue appropriate guidelines to all the States, prescribing reasonable rates for COVID-19 tests and treatment.[10]
However, certain concerns pertaining to the treatment of COVID-19 patients such as unequal treatment and lack of resources remain unaddressed. The judgment has failed to take into consideration the plight of vulnerable sections of the society during COVID-19 in terms of providing them with adequate healthcare. These vulnerable sections include those who are positioned at a disadvantaged stage where they do not have access to quality healthcare services for COVID-19. These groups of people are considered to be dynamic because a group considered not to be vulnerable before the pandemic, could have become vulnerable on account of the pandemic.[11] It is the need of the hour for the government to respond to COVID-19 in a way that is sensitive to vulnerable communities such as immigrants, differently-abled, indigenous communities, and emergency responders. The scope of this article is limited to highlighting and analysing these concerns that were inadequately dealt with in the court order.
The Psychology Surrounding Disparity In Treatment
Disparity, based on factors other than capacity to pay, in the treatment of COVID-19 patients is a problem, with no hospital or governmental policy aiming to address this situation.[12] While lack of resources can result in unequal treatment,[13] it is argued that even with a just allocation of resources there exist other innate factors such as caste, religion and popularity that result in this disparity.
These innate factors can be attributed to the cognitive process of implicit biases. Implicit biases are unconscious stereotypes that result in a negative or positive evaluation or decision-making based on a person’s race, gender, or popularity.[14] Since it is an unconscious process, implicit biases can also effect well-intentioned and egalitarian individuals and persuade them to take actions that they may not have been explicitly intended.[15] Research studies have shown that health professionals also possess and display these implicit biases while treating their patients.[16] They have shown how these biases can influence diagnostics, treatment decisions, and also the level of care provided by health professionals.[17]
Such biases have been present in India from before the start of the pandemic, and the problems associated with the same have been exacerbated due to the COVID-19 pandemic. Surveys have shown how factors such as being a dalit or a member of a lower caste can affect the manner of treatment by hospitals and doctors.[18] The recent treatment of the Bachchan family for COVID-19 is also an example of the presence of such biases in the health system in India. Though the Bachchans had only mild symptoms, they were admitted to an isolation facility even though patients who have required critical care and but are without access to resources, have not been given medical attention.[19] Such special treatment based on biases such as popularity of the individual and ‘VIP culture’, results in disproportionate utilisation of the hospital resources leaving other patients who actually require these resources unattended. This severely jeopardises the allocation of the already scarce resources proportionately amongst groups and individuals. It impedes resource allocation to people such as cancer patients, poor, and elders, who are more vulnerable to the virus and require more attention.[20]
Need For Universal Access To Health
The government must provide universal access to healthcare, such that even socially and economically disadvantaged and systemically marginalised sections of society have access to the same. These vulnerable sections are unable to access healthcare due to various reasons starting from financial constraints to inability of the government to make these services available to them. There still exists a huge urban-rural bias in availability of health facilities and the quality of treatment provided by public and private hospitals vary widely.[21] On the one hand, the public sector hospitals are unequipped to face the pandemic, and patients are treated “worse than animals”.[22] On the other hand, private hospitals are charging exorbitant prices for COVID-19 treatment, which vulnerable sections of the society cannot afford.[23] They are thereby left with no option other than public services which do not cater to their required needs and standards such as hygiene conditions for treatment where the dead bodies and COVID-19 patient are kept in the same ward etc.[24]
However, one may argue that the government has previously rolled out many healthcare schemes such as Rashtriya Swasthya Bima Yojana (RSBY), Pradhan Mantri Jan Arogya Yojana (PM-JAY) for the vulnerable sections to provide them assistance in medical treatment. RSBY had some shortcomings such as inadequate insurance cover, non-inclusion of out-of-pocket payments[25]. In 2019, RSBY was replaced by PMJAY, this scheme also does not adequately address the problem of out-of pocket payments. One of the primary reasons for health insurance to the vulnerable is to reduce their catastrophic expenditure. [26] Many families which are placed slightly above the poverty line are often pushed into poverty due to catastrophic health expenditure.[27] These catastrophic expenditures are defined as the medical costs which exceed 40% of the household’s income after the subsistence needs of the household are met.[28] Catastrophic expenditure is considered to be out-of-pocket payments (not covered by insurance schemes).[29][30] In the present scheme (PMJAY) the government has fixed package rates for different treatments which would again increase out-of-pocket payments. For instance, the package fixed by the scheme for COVID-19 treatment is Rs.4000 but the same would vary across hospitals, it would be ranging around Rs. 50,000 in a speciality hospital. This would again increase out of pocket payments thereby increasing the catastrophic expenditure.[31]Additionally, private hospitals have often misused government insurance schemes by reimbursing the funds through unwarranted tests and procedures for the patient.[32] One such instance would be the Bihar hysterectomy scam in 2011, where over 700 women were given unwarranted hysterectomies for insurance pay-outs.[33] These insurance schemes have not been beneficial to the vulnerable.
Vulnerable Groups And Their Rights
Vulnerable groups in society often encounter discrimination and need special attention to avoid potential exploitation. In Indian society, there exist many vulnerable groups such as Dalits, differently-abled, etc. Due to the pandemic, one such group which has faced unequal treatment would be sanitation workers. Sanitation workers are also considered as ‘essential services’ but do not receive due attention despite their significant contributions.[34] The workers are involved in work described as “4D’s”: Drudgery, dangerous, dirty, and dehumanising, and are often exposed to hazardous gases emitted from the solid waste.[35] Their work is looked down upon because of nature of work and the stigma that the people involved in such work belong to historically discriminated groups of India’s population.[36] These workers are exposed to a higher risk of COVID-19 because the virus can be transmitted through faeces and disposed chemical waste.[37] Still, the government has not taken adequate measures for their safety. The workers are not provided with adequate protection gear for protection.[38] While this is the plight of one section of people, there exist many such vulnerable groups as mentioned above who are being ignored by the government.
Right to Health
By providing inadequate services to the vulnerable, the government has violated their fundamental right to life under Article 21 of the Constitution. In the case Paschim Banga Khet Mazdoor Samity v. State of West Bengal,[39] the petitioner was refused admission to many government hospitals due to a lack of necessary facilities available in the hospitals for treatment. The SC held that failure on the part of a government hospital to provide timely and adequate medical treatment to a patient who needs the treatment is a violation of his right to life guaranteed under Article 21.[40] In the similar manner, the government violates Article 21 of the vulnerable groups when adequate measures are not been taken by the government for the vulnerable in the times of a health emergency.
The government owes a positive obligation towards providing emergency medical services to the vulnerable when there exists an emergency. Under Article 47 of the Directive Principles of State Policy, the State has the duty to improve public health system.[41] Although, the directive principles are considered to be non-obligatory on the part of the state, courts in various cases have taken the view that improvement of public health has to be ranked higher as it is indispensable to the very physical existence of the community.[42] In the case of Parmanand Katara v. Union of India,[43] the SC has taken the view that Article 21 of the Constitution casts a positive obligation on the part of the state to preserve and protect the lives of people. If emergency health services are not being provided to people, it would be considered to be violative of Article 21.[44] The states take a plea of financial stringency for inadequate public health systems, but it cannot be ignored that there exists a constitutional obligation on the part of the state to provide adequate health facilities. As discussed above, the sanitation workers are not adequately provided with protective gears which in turn exposes them to COVID-19 and they lack adequate access to medical treatment due to their financial constraints. For medical treatment in public hospitals there exists a dearth of beds due to overcrowding.[45] Such failure on the part of the government to provide essential services in an emergency situation such as COVID, which can lead to death is the gross violation of Article 21 of the vulnerable.
Recommendations
Due to the concerns raised in the above parts, the authors have two recommendations to improve the unequal treatment of COVID-19 patients.
First, in light of the subjectivity involved with respect to allocation of resources due to implicit biases during treatment, the authors recommend for certain guidelines to be incorporated by the Central and State governments. Each hospital or health institution should form a committee for managing resource allocation. Reliance can be placed on the guidelines and model formulated by the Health Evidence Review Commission of the State of Oregon, USA.[46] These guidelines attempt to allocate resources on the basis of maximising benefit, evidence, fairness, social welfare, and objective criteria instead of subjective choices of health professionals.[47] This can help in reducing the inherent biases that occur during treatment of COVID-19 patients.
Second, the government must make policies sensitive to the vulnerable groups. It should provide universal access to emergency healthcare services without any form of discrimination. The government must identify the groups and provide them with adequate help and, in the long-term, fix structural problems to make sure that the policies reach vulnerable sections of the society. One of the reasons for the underperformance of the public sector hospitals is the lack of investment in the field.[48] As public sector hospitals most accessible to the poor; the facilities must be of a high quality and such facilities should be are accessible to everyone.
An equitable health system is a core social institution, not less than a fair court system or democratic, political system.[49] One of the major goals of World Health Organisation is universal health coverage, which means that people must have access to health services whenever and wherever they need them, without financial hardship.[50] Indian government, to bring universal access to healthcare, must allocate more health care resources to those in the greatest need and ensure that the policies are sensitive for all.
The authors, Srihita Vala and Abhinav Gupta, are currently law students at the National University of Juridical Sciences (NUJS), Kolkata.
[1] Seemi Pasha, COVID-19 Patients under government care in Delhi complain of poor conditions, April 26, 2020, available at https://thewire.in/health/covid-19-patients-under-government-care-in-delhi-complain-of-poor-conditions (Last visited on July 23, 2020).
[2] Qrius, Why are Indian Patients fleeing Coronavirus Quarantines?, March 18, 2020, available at https://qrius.com/why-are-indian-patients-fleeing-coronavirus-quarantines/ (Last visited on July 23, 2020); Kanchan Srivastava, PIL filed in Allahabad HC over alleged mistreatment of COVID-19 patients and suspects in Agra and Meerut, May 13, 2020, available at https://www.freepressjournal.in/india/pil-filed-in-allahabad-hc-over-alleged-mistreatment-of-covid-19-patients-and-suspects-in-agra-and-meerut (Last visited on July 23, 2020).
[3] In Re: Proper Treatment of Covid-19 patients and Dignified Handling of Dead Bodies in the Hospitals, etc., 2020 SCC OnLine SC 504, ¶¶1 – 4.
[4] In Re: Proper Treatment of Covid-19 patients and Dignified Handling of Dead Bodies in the Hospitals, etc., 2020 SCC OnLine SC 530, ¶10.
[5] Id., ¶¶12 – 17.
[6] Id., ¶12.
[7] Id., ¶13.
[8] Id., ¶14.
[9] Id.
[10] Id., ¶17.
[11] T Lancet, Redefining vulnerability in the era of Covid-19, April 2, 2020, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7270489/ (Last visited on July 23, 2020).
[12] Al Jazeera, How coronavirus crisis exposes India’s social inequalities, June 26, 2020, available at https://www.aljazeera.com/news/2020/06/coronavirus-crisis-exposes-india-social-inequalities-200626060045684.html (Last visited on July 23, 2020); Time, Coronavirus Cases spike in South Africa and India, exposing inequalities in virus treatment, June 11, 2020, available at https://time.com/5865891/global-coronavirus-treatment-inequality-south-africa-india/(Last visited on July 23, 2020).
[13] Live Mint, COVID-19 Shows why we need a healthcare reboot for India, March 30, 2020, available at https://www.livemint.com/politics/policy/will-covid-19-prompt-health-reboot-11585497828527.html (Last visited on July 23, 2020).
[14] Jules Holroyd, Implicit bias, awareness and imperfect cognitions, 33 Consciousness And Cognition 511 (2015); Ohio State University, Understanding Implicit Bias, available at http://kirwaninstitute.osu.edu/research/understanding-implicit-bias/ (Last visited on July 23, 2020).
[15] Cheryl Staats, Understanding Implicit Bias, American Educator 29 (2015).
[16] Chloe FitzGerland & Samia Hurst, Implicit bias in healthcare professionals: a systematic review, 18 BMC Med. Ethics 15 (2017).
[17] Id.
[18] Humanitarian Aid Relief Trust, India’s Inequality in healthcare: the caste divide, January 28, 2016, available at https://www.hart-uk.org/blog/indias-inequality-in-healthcare-the-caste-divide/ (Last visited on July 23, 2020).
[19] Shamani Joshi, The Face of India’s Virus Awareness Campaign has COVID-19. His VIP Treatment highlights the inequality in healthcare access, July 13, 2020, available at https://www.vice.com/en_in/article/akzjke/the-face-of-indias-virus-awareness-campaign-has-covid-19-his-vip-treatment-highlights-the-inequality-in-healthcare-access (Last visited on July 23, 2020); See also The Wire, Will COVID-19 Intensify the Fault Lines of India’s Already Unequal Society?, April 27, 2020, available at https://thewire.in/health/india-inequality-covid-19 (Last visited on August 19, 2020); Al Jazeera, How the coronavirus crisis exposes India’s social inequalities, June 26, 2020, available at https://www.aljazeera.com/news/2020/06/coronavirus-crisis-exposes-india-social-inequalities-200626060045684.html (Last visited on August 19, 2020).
[20] Al-Quteimat & Amer, The impact of COVID-19 on cancer patients¸43(6) Amer. J. Crim. Onco. 452 – 453 (2020); Judith R. Glynn, Protecting workers aged 60-69 years from COVID-19, 20(6) Lancet. Infect. Dis. 669 (2020).
[21] Yarlini B, S Selvaraj & SV Subramanian, Healthcare and equity in India, 377The Lancet 505-515(2011).
[22] In Re the Proper Treatment of COVID-19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc., 2020 SCC OnLine SC 530.
[23] Sruthisagar Yamunan, Fear of Covid-19 spread makes private hospitals turn away patients -or charge them higher bills, April 23, 2020, available at https://scroll.in/article/959727/fear-of-covid-19-spread-makes-private-hospitals-turn-away-patients-or-charge-them-higher-bills (Last visited on July 23, 2020).
[24] In Re the Proper Treatment of COVID-19 Patients and Dignified Handling of Dead Bodies in the Hospitals etc., 2020 SCC OnLine SC 530.
[25] Neetu Chandra Sharma, Study highlighting the shortcomings of government’s health schemes, October 11, 2017, available at https://www.livemint.com/Politics/dU1NjIPr8p7cyRfMOihiIO/Study-highlights-shortcomings-of-governments-health-schemes.html (Last visited on September 1, 2020).
[26] Id.
[27] Arvind Kasthuri, Challenges to Healthcare in India – The Five A’s, 3Indian Journal of Community Medicine 43 (2018).
[28] Sharifa Ezat Wan Puteh & Yasmin Almualm, Catastrophic Health Expenditure among Developing Countries, 4(1) Health Systems and Policy Research 1 (2017).
[29] Id.
[30] Renu Shahrawat & Krishna D Rao, Insured yet vulnerable: out of -pocket payments and India’s poor, 3 Health Policy and Planning 27 (2012).
[31] Id.
[32] Nayantara Narayanan, Does India really need a costly national health scheme with Rs 5 Lakh as insurance cover?, August 14, 2018, available at https://scroll.in/pulse/890249/modicare-does-india-really-need-a-costly-national-health-scheme-with-rs-5-lakh-as-insurance-cover (Last visited on July 23, 2020).
[33] Id.
[34] Pradeep S. Salve & Suresh Jungari, Sanitation workers at the frontline: work and vulnerability in response to Covid-19,July 13, 2020, available at /https://www.tandfonline.com/doi/full/10.1080/13549839.2020.179243 (Last visited on July 25, 2020).
[35] Id.
[36] Id.
[37] Supra note 25.
[38] Id.
[39] Paschim Banga Khet Mazdoor Samity v. State of West Bengal, 1996 SCC (4) 37.
[40] Id.
[41] The Constitution of India, 1950, Art. 47.
[42] Vincent Panikuriangara v. Union of India, 1987 AIR 990.
[43] Parmanand Katara v. Union of India, 1989 AIR 2039.
[44] Id.
[45] Al Jazeera, Indian running out of Hospital beds amid record coronavirus cases, June 9, 2020, available at https://www.aljazeera.com/news/2020/06/india-running-hospital-beds-record-coronavirus-cases-200609111732298.html (Last visited on August 16, 2020).
[46] Oregon Health Authority, Health Evidence Review Commission¸ available at https://www.oregon.gov/oha/HPA/DSI-HERC/Pages/index.aspx (Last visited on August 19, 2020).
[47] Somnath Saha, Darren D. Coffman & Ariel K. Smits, Giving Teeth to Comparative-Effectiveness Research – The Oregon Experience, 18 The New England Journal of Medicine, 2 – 3 (2010).
[48] Sophie Bader, In India, can Universal health care become a reality?, September 4, 2018, available at https://www.devex.com/news/in-india-can-universal-health-care-become-a-reality-92650 (Last visited on July 23, 2020).
[49] Lynn P Freedman, Achieving the MDG’s : Health systems as core social institutions, 1 Development 48 (2005).
[50] World Health Organization, International Universal Health Coverage Day 2019 commemorated with the theme – keep the Promise – Accelerating India’s Journey towards UHC, December 12, 2019, available at https://www.who.int/india/international-universal-health-coverage-day-2019-commemorated (Last visited on July 20, 2020).
The Journal of Indian Law and Society 