Nation Other News 09 Aug 2017 High time to enact l ...

High time to enact law to make denial of treatment a cognisable offence

DECCAN CHRONICLE. | DR BISMI GOPALAKRISHNAN
Published Aug 9, 2017, 1:17 am IST
Updated Aug 9, 2017, 1:17 am IST
Though the Constitution contains only implied provisions, the judiciary has elevated the right to health as a fundamental right.
Representational image
 Representational image

The death of Murugan, a migrant labourer who was injured in a road accident late on Sunday night after being denied treatment by several hospitals in Kollam and Thiruvananthapuram has triggered a debate on whether the hospitals and doctors are duty bound to ensure medical care to a patient in an emergency. An emergency, which is a sudden, unforeseen injury, illness or complication, demands immediate or early professional care, that too within the ‘golden hour’. The immediate responsibility of the doctor is to apply his knowledge and skill to save the life and give relief and to establish the most favourable conditions for the patient's ultimate recovery. But Murugan’s case militates against this basic philosophy even as we hear questions such as whether doctors are bound to treat emergency patients or is the obligation same for government and private hospitals. If it is a police case, should the police formalities first completed before attending to a patient? What if the patient and her relatives do not have money to bear the expense?

Doctors must have known that the prime importance of emergency medical care is incorporated in numerous International human rights documents and it is an inalienable human right. Art. 25 of Universal Declaration of Human Rights, 1948; Article 25 and Art. 12 of International Convention on Social Economic and Cultural Rights and Art. 11 of European Social Chapter of 1961 are examples.  Though the Indian Constitution contains only implied provisions which promote public health protection, the judiciary has elevated the right to health as a fundamental right under Article 21. The Supreme Court, in Paramand Katara Vs Union of India (1989) case categorically stated that there can be no second chance in case of preservation of human life.

 

“That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man,” the court had said. Thus, the judiciary has decided that a doctor, whether at a government hospital or a private one, is duty-bound to extend medical assistance for preserving life. No law or state action can intervene to avoid or delay the discharge of the paramount obligation cast upon them. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way. In Labnoya Moyee Chandra V State of West Bengal, the Supreme Court observed that there is duty on the doctor to accommodate an emergency patient in any of the department if there is no bed available in the concerned department.

 

As per the recommendations by the Skandan committee to the Supreme Court, any doctor refusing to attend or treat a road accident victim must face disciplinary actions as per the norms laid down under the Medical Council of India guidelines. The panel also suggested that the hospitals admit such victims and the person who bought the injured to the hospital should not be detained by the hospital authorities and authorities should not ask them for registrations or for any other formalities. In 2016 in Laxmi V Union Of India, the court said that every acid victim has the right to first aid. The court observed No hospital or clinic should refuse treatment by citing lack of specialised facilities. First aid must be administrated to the victim and after stabilisation, the victims could be shifted to a specialised facility for further treatment if it is required. It also ruled that action may be taken against the hospitals which refuse treatment to the victims.

 

In our current legal system, there no direct legislation relating to emergency medical care but we can see indirect reference to the aspects of emergency medical care under different legislations. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, States that though a physician in normal situations is not bound to treat each and every person asking his service, he should treat a patient in emergency and no physician will arbitrarily refuse treatment. And if necessary, he may suggest specialized care and send to him to another physician for it. Section 134 of the Motor Vehicles Act, 1988, imposes a duty on the driver of the vehicle and doctor and hospital authority to give medical attention to the victim without waiting for legal formality. Section 187 creates it as an offence if Section 134 is not complied with. Apart from these legislations, there is the order of the ministry of health and family welfare relating to the specification for the procurement under the national high way accident relief service scheme ( NHARSS)and deals with what all are to be included in advance life support ambulance. 

 

The medical treatment after accidents and during emergency condition and women in labour bill modeled on the basis of American Act of Emergency Medical Treatment and Labour Act (EMTALA) is also on the anvil. Section 3 of the bill states that it is the duty of the doctor and every hospital irrespective of government or private to attend immediately to all persons met with an accident or with an emergency condition. It high time we enacted a law which will make denial of treatment a cognisable offence and ensure that the incidents, like we witnessed the other day did not repeat.   

 

(The writer is dean, faculty of law, Mahatma Gandhi University, Kottayam & associate professor and head, department of law, University of Kerala)

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Location: India, Kerala




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