Dr Roshan Rohit
He is a surgeon and legal expert. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of Healthwire Media
It was 1896, plague wreaked havoc in Mandvi (erstwhile Bombay Presidency) now in modern Gujarat. Bombay Presidency was densely populated province, the plague epidemic hit hard and spread like bushfire. There were almost 1900-reported deaths/week during the epidemic. This created an overwhelming need for containment measures that was the genesis of Epidemic Disease Act 1897, enacted to limit spread of contagious diseases.
Cut to 21st century, the modern-day annihilator Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) has devoured countries, their economies and is hitting hard at our very existence. The impact on India has been devastating and it now has the fourth largest number of infected patients in the world. Can the enforcement agencies deal with the health crisis in India?
Analysis of COVID-19 prevention measures
We not only lack self-discipline to fight COVID-19 spread, our healthcare laws may not be capable to tackle a hellish devourer. Various measures are adopted by the state and Central Government to stop COVID-19 spread. Social isolation and lockdown are effective somewhat in flattening the curve of increase in number of cases of COVID-19. But there has been challenges along the way which has forced us to stare down the barrel of a gun.
1. Reluctance of state machinery to stop mass exodus of migrant workers causing widespread infection at a rapid pace. Is it not easier to manage many patients in cities with better healthcare infrastructure instead of spreading infection to interiors of country? We had a recent report of a techie from Gurgaon who literally died at the altar, within the process infecting 95 guests at outskirts of Patna.
2. Lack of centre-state coordination and interstate coordination to tackle COVID-19 related healthcare setup, resource sharing, preventing migration etc.
3. The utter disregard of social distancing, curfew, quarantine, containment, and diagnostics norms.
4. We aren’t strengthening the hands of CORONA Warriors like doctors, cops, and sanitation worker. Frontline workers are forced to fight a losing battle by not getting PPE, adequate rest, adequate testing of symptomatic patients etc
Healthcare Laws in India: The Present Situation
Public healthcare laws in India fall woefully short in meeting the requirements of a pandemic situation. The compulsory quarantine laws in India are mild compared to several countries. This results in a crucial point – what must be done to strengthen the healthcare laws to manage an epidemic situation like COVID-19.
1. The Supreme Court observed that Article 21 of the Constitution of India concerning human rights has to be interpreted in conformity with international law. Further, Article 25 [2] of the Universal Declaration of Human Rights and Article 7 (b) of the International Covenant on Economic, Social and Cultural Rights have been cited by the Supreme Court while upholding the right to health by a worker. The Constitution of India guarantees every citizen’s right to the highest reasonable standard of physical and mental health. Article 21 of the Constitution ensures protection of life and personal liberty to every citizen. These fundamental laws need to be kept in mind while drafting new legislations.
2. Disaster Management Act, 2005 was enacted to manage disasters and emergency, however the primary law its resorts to is the 123-year old Epidemic Diseases Act (EDA), 1897, that govern healthcare emergencies in India. India does not have dedicated legislation to manage pandemic situation. The act – EDA is not aligned to practical realities of modern era. Healthcare falls in the state list under the Seventh Schedule of the Constitution. The Centre advise states to implement and invoke the laws and regulations whenever it finds evidence of inadequate implementation, and cannot enforce it. It is entirely left to the state government to take steps by framing suitable regulations, which many states are inept in doing.
Disobedience to quarantine rule is punishable under Section 271 of the Indian Penal Code, 1860. Failure to take requisite precautions despite being aware of the possibility of the spread of such infection or disease is punishable under Sections 269 and 270 of the IPC.
Measures to Increase Vitality of Healthcare Laws
a) Define the rights of healthcare personnel – Healthcare workers need protection against ever increasing instances of violence against them, specially when they are risking their lives everyday taking care of increasing number of sick and COVID-19 affected patients. The Epidemic Diseases (Amendment) Ordinance, 2020 mandates that violence against healthcare workers can now be punishable by up to 7 years in prison.
b) Define the travel restrictions to contain an epidemic/pandemic– when to restrict, how much, what rights to be curtailed etc.
c) Define the rights of patients– In 2002, the Medical Council of India published a Code of Ethics Regulations (COER) which deals among other things about duties and responsibilities of physicians in addition to certain rights of patients. National Health Regulatory and Development Authority (NHRDA) is being set as an ombudsman that will monitor and enforce standards for healthcare delivery. The authority being established under tutelage of Planning Commission will regulate and monitor /audit both public and private sectors, and provide redress of complaints made by patients. The National Human Rights Commission too is drafting legislation seeking to protect the rights of patients in India and to ensure that standardised treatment is made available to everyone without discrimination.
d) Empowering officers who implement the regulations: Empowering officials who implement regulations like EDA shall be shielded from prosecution for any act done in good faith for implementation of the acts. A Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill was drafted by the MOHFW in for taking swift actions during emergency situation. This draft has still not become a law.
Extreme times demand extreme measures. Many countries have implemented strict measures to strengthen their response against current pandemic. These measures may include rationing of resources, forced isolation or quarantine, or imprisonment of defaulters and seizure of property. India seems to be loo=sing grip over the present situation which has led to the ever-increasing number of patients infected with SARS-CoV-2. These is a pressing need to develop a robust legal framework which is agile and potent to tackle a nemesis like COVID-19. The polity has shown some intent, but it is not a task for a lone ranger. It would require the combined might of every individual, institution, industry and legal system to strengthen our effort to control and eradicate COVID-19.
