Article 25 of the Universal Declaration of Human Rights, 1948 (UDHR) encapsulated the ‘right to health’ in the following words:
“1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
While Article 12(1) of the ICESCR referred to the ‘right to health’ in aspirational terms, Article 12(2) mandated specific measures on part of the state parties to the covenant. Its language reads as follows:
“1. The State Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the still-birth rate and of infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial hygiene;
(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
Directive principles of State policy has several provisions that touch on the subject of health and one can refer to the text of Articles 39(e), 39(f), 42 and 47.
In India, the theory of the inter-relatedness between rights was famously articulated in the Maneka Gandhi decision. This became the basis for the subsequent expansion of the understanding of the ‘protection of life and liberty’ under Article 21 of the Constitution of India. The Supreme Court of India further went on to adopt an approach of harmonization between fundamental rights and directive principles in several cases. With regard to health, a prominent decision was delivered in Parmanand Katara v. Union of India.
In that case, the court was confronted with a situation where hospitals were refusing to admit accident victims and were directing them to specific hospitals designated to admit ‘medico-legal cases’. The court ruled that while the medical authorities were free to draw up administrative rules to tackle cases based on practical considerations, no medical authority could refuse immediate medical attention to a patient in need. The court relied on various medical
sources to conclude that such a refusal amounted to a violation of universally accepted notions of medical ethics. It observed that such measures violated the ‘protection of life and liberty’ guaranteed under Article 21 and hence created a right to emergency medical treatment.
Another significant decision which strengthened the recognition of the ‘right to health’ was that in Indian Medical Association v. V.P. Shantha.
In that case, it was ruled that the provision of a medical service (whether diagnosis or treatment) in return for monetary consideration amounted to a ‘service’ for the purpose of the
Consumer Protection Act, 1986. The consequence of the same was that medical practitioners could be held liable under the act for deficiency in service in addition to negligence. This ruling has gone a long way towards protecting the interests of patients. However, medical services offered free of cost were considered to be beyond the purview of the said Act.
With regard to the access and availability of medical facilities, the leading decision of the Supreme Court was given in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal.
The facts that led to the case were that a train accident victim was turned away from a number of government-run hospitals in Calcutta, on the ground that they did not have adequate facilities to treat him. The said accident victim was ultimately treated in a private hospital but the delay in treatment had aggravated his injuries. The Court realized that such
situations routinely occurred all over the country on account of inadequate primary health facilities. The Court issued notices to all State governments and directed them to undertake measures to ensure the provision of minimal primary health facilities. When confronted with the argument that the same was not possible on account of financial constraints and limited personnel, the Court declared that lack of resources could not be cited as an excuse for non-performance of a constitutionally mandated obligation. The Court set up an expert committee to investigate the matter and endorsed the final report of the said committee. This report contained a sevenpoint agenda addressing several issues such as the upgrading of facilities all over the country and the establishment of a centralized communications system amongst hospitals to ensure the adequacy and prompt availability of ambulance equipment and personnel.
Some commentators have argued that by recognizing a governmental obligation to provide medical facilities, the Court has created a justiciable ‘right to health’.
