India’s western Indian state of Rajasthan enacts the country’s first Right to Health Law Worthy as the statutory initiative is, loopholes need to be plugged to answer concerns of civil society and medical professionals
13, Apr 2023 | A Legal Researcher
“Wo bahar casualty mein koi marne ki halat me raha, toh usko form bharna zaroori hai kya?”
-Munna Bhai, M.B.B.S, a popular film from Hindi cinema
Medical Emergencies give people all kinds of anxieties given the toll it takes on families mentally and financially. The procedures to get a treatment, the inaccessibility and unaffordability of quality healthcare makes it hard to change the perception of the service to an accessible one.
Health, Education and Sanitation remain some of the core issues the country faces today and the state has been launching schemes and programmes to tackle the issues. Some saw success and some were in vain. The recent Right to Healthcare Act, 2023 as passed by the Rajasthan’s legislature is a unique and first of its kind in the country with respect to its aims of making health services accessible and affordable to everyone in the state. The act, which is yet to be signed by the governor, has also attracted huge protests by mostly private doctors in the state with many medical establishments being closed due to protests. This article will discuss the workings of the act, and the reasons for the protests by the doctors and way forward-out of this conflict between health professionals and the government.
The Rajasthan Right to Healthcare Bill, 2022 was released for comments in March 2022 and was tabled in the legislative assembly in October 2022. However, it was sent to a select committee which again presented an amended bill to the legislature. The amended bill was passed by the legislature and now awaits the governor’s assent.
What does the Act do?
Section 3 of the act provides the rights of residents of Rajasthan.
The features of the act can be divided into three wings.
- Emergency Treatment
- Free OPD and Health Care services from any health care establishment.
- Reimbursement for Emergency
Emergency Treatment
Section 3(C ) of the act states that every resident of Rajasthan has right to get treatment or care in case of accidental emergency, emergency due to snake bite/animal bite and any other emergency decided by State Health Authority under prescribed emergency circumstances, without prepayment of requisite fee or charges including prompt and necessary emergency medical treatment and critical care, emergency obstetric treatment and care, by any Public Health Institution i.e., government run, or Health Care Establishment- both private and public or, designated health care centres- institutions that will be notified in the further rules. In case of a medico legal case, the act states that no person shall be denied treatment merely on the grounds of receiving police clearance or report.
Simply put, a person has a right to get emergency treatment for accident emergency or snake/animal bite from a government hospital or a private hospital or any other establishment as notified by the government. The government will have power to notify other emergencies apart from the ones mentioned in the act.
Free OPD and Health Care Services at health establishments
Section 3(d) of the Act states that any resident has the right to get healthcare services at a public health institution, health care establishment and designated health care centres in the prescribed manner and subject to be terms and conditions specified in the rules.
Healthcare services include “testing, treatment, care, procedures and any other service or intervention towards a preventative, promotive, therapeutic, diagnostic, nursing, rehabilitative, palliative, convalescent, research and/or other health related purpose or combinations thereof, including reproductive health care and emergency medical treatment, in any system of medicines, and also included any of these as a result of participation in a medical research program.”
Simply put, this section gives right to people to get free healthcare at virtually every and any institution in the state. However, the specifics including any upper limits, if any, , would be later specified in rules by the government.
Reimbursement for Emergency
This act does not nationalise or take control of private hospitals. It merely places onus on hospitals and health establishments to provide care for which the government would later reimburse them.
A proviso to Section 3(c) states that if after proper emergency care, stabilisation and transfer of patient, if patient does not pay requisite charges, healthcare provider shall be entitled to receive requisite fee and charges or proper reimbursement from State Government in prescribed manner as the case may be.
Miscellaneous
The act establishes State and District Health Authorities for the effective implementation of the act. However, it is noteworthy that before the bill was referred to select committee, there was adequate representation of public health workers (civil society) in the authorities which is now absent. The current structure of Health authority (state and district) consists of people from the Indian Medical Association apart from the government representatives and nominees.
These are the primary and the most important provisions of the law. Other rights granted to residents include right to be treated with dignity, right to privacy, right to the presence of female person, during physical examination of a female patients by a male practitioner etc.
As already stated above, healthcare includes Palliative Care. Palliative care is specialized medical care for people living with a serious illness, such as cancer or heart failure. If the rules accommodate some amount of palliative care within the accessible free service, it will be of a great significance since studies reveal that more than a million people would be in need of palliative care as the cancer patients are set to grow, in the country. The free access to reproductive care, also included in healthcare will give more freedom for women to access hospital without having to worry about an out-of-pocket expenditure. Given that one-third of the girls get married before 18 years, and 6.3% of girls in the age group of 15 to 19 years are already mothers or are pregnant in the state of Rajasthan, investment in sexual and reproductive health is crucial for the State.
Why are the doctors protesting?
The law does not have any laid out clear mechanism on how the government is going to reimburse the hospitals for the emergency care. The government says that all that procedures will be worked out in the rules that would be notified later. However, to put an obligation in the law made by the legislature is different from the obligation in a document (Rules) crafted by the executive. The volatile nature of the rules and the non-existence of any skeletal level mechanism has provoked the health professionals.
Secondly, the free access to health care under Section 3(d) of the act does not have any provisions for reimbursements from the government like the emergency care does. This has been understood (received) as a no-assurance measure and became one of the reasons for the protest.
Is the law still among the best despite Doctors’ concerns?
This law, like many or most laws, is not perfect and has its own limitations. The rights are expressly given to residents. Resident, according to the definitions, mean an ordinary resident of Rajasthan. It is not clear if the Aadhar card will be the basis or if there is any other criteria for the determination of the resident status. If such stringent determinants are followed, then migrant workers who might go to the state or people in emergency situations might not be able to get required care. The bill, before it was sent to the select committee, included all persons to be eligible for emergency care under Section 3( C) and for all residents, free access to health care. This distinction was done away with in the final act, making way for exclusion.
Additionally, the state health authorities lack representation of citizens groups or civil society or any such public health worker who would have been a point of contact for the ordinary people. A statutory presence of such representation would have aided monitoring and implementation and advice, to the government with respect to different aspects of public health.
Way forward
The Rajasthan government has announced that there is no question of taking the law back and doctors have stopped providing medical services, leading to a crunch of medical professionals. The way out of this conflict is an initiation of dialogue, which is the obvious recourse. Additionally, the government also should initiate the process of drafting the rules while actively consulting with the medical associations and alleviating their fears. Every effort should be made to make this law a productive and effective one.
The law’s implementation would be just another stale bureaucratic framework if public health workers and the active citizenry is not involved in the state and district health authorities. Ample steps must be taken to make sure that such gaps in representation are filled. Nonetheless, the law is a remarkable legislation whose legacy will depend on how accommodative and inclusive the rules will be.
(The author is interning with cjp.org.in)
Related:
Is the right to health a forgotten constitutional mandate?
Make Right to Health a fundamental right: Oxfam India’s report on unequal healthcare
