Guj HC | “If State would not have been doing anything, we all would have been dead”: Court berates politicising of COVID-19 situation while at the same time reminding the State of its Constitutional obligations

In times of crisis, we need to bind, not bicker.

-Gujarat High Court

COVID 19 crisis is a humanitarian crisis, not a political crisis.

Gujarat High Court: A Division Bench of Vikram Nath, CJ and J.B. Pardiwala, J. while addressing certain issues with regard to COVID-19 , stated that,

Healthcare access is the ability to obtain healthcare services such as prevention, diagnosis, treatment and management of diseases, illness, disorders, and other health ­impacting conditions. For healthcare to be accessible it must be affordable and convenient.

Cognizance of report filed by State Government

Issue of Migrant Workers

Supreme Court has already taken care of the issue of migrant workers and thus no new directions needs to be issued by this Court.

Court though observes that,

if there are any other migrant workers in the State of Gujarat, who are desirous to go back their native States, then they may come forward so that necessary arrangements can be made for their departure. The State Government shall ensure that necessary arrangements are made for such migrants inclusive of providing food, water and other basic amenities.

Private/Corporate Hospitals designated by the State Government

Court took notice of the fact that the private / corporate hospitals agreed to reduce their rates by 30% and now they further agree to reduce by 10% for the private beds (B category) for Ward and HDU and 5% for : (1) isolation + ICU and (2) ventilation + isolation + ICU.

President of the Association namely Dr Gadhavi assured the Court that they would not raise any objection with regard to the further reduction of 10% and 5% respectively.

In the wake of the fact that the Association has readily accepted to reduce the rates by further 10% and 5% respectively, the State Government now need not renegotiate further in this regard.

Bench also added in the regard of exorbitant fees as mentioned in its last Order, that, right to health is a fundamental right and it is for the State to ensure that such right of its citizen is not infringed in any manner. It is, in such circumstances, we had to observe that the private / corporate hospitals cannot charge exorbitant fees from a helpless individual who has no means to get himself treated in a private / corporate hospitals.

Senior Counsel, Soparkar, submitted while assuring the Court that he will definitely speak and impress upon his client to ensure that all the designated hospitals strictly adhere to the terms and conditions of the Memorandum of Understanding and would not create any trouble or hardship in future for any patient who is in need of treatment.

State Government os directed to keep a close watch on all the designated private / corporate hospitals who have been directed to reserve 50% beds so that a common man may not have to suffer.

Court also clarified that, if any patient is referred by the Civil Hospital or the S.V.P. Hospital to any private / corporate hospital, then there shall be no pre­ deposit, but, if any patient directly comes to the private / corporate hospital for being treated for COVID­19, then in such circumstances, it shall be open for the hospital concerned to demand for a reasonable pre­ deposit and thereafter, raise the demand in phases as and when need arises.

Medicine is a humanitarian profession.

All the hospitals whether private or public are considered moral agent and hence have a moral responsibility. The responsibility to act in certain ways falls upon those who may make up these hospitals.

Testing Policy

Once the doctor prescribes the COVID-­19 test for the purpose of taking due care before the surgery is performed or before any particular treatment commences, then why permission is to be obtained from the DHO / CDHO?

In the above view, Court called upon the Advocate General to explain the rationale behind the said policy, as the bench found the most disturbing feature of the policy that the DHO or CDHO hardly find time to grant necessary permission.

Advocate General submitted that the report of the three experts makes it abundantly clear as regards what should be the testing policy. According to the Advocate General, the State Government is bound to comply with the guidelines issued by the ICMR.

In view of the above, Court stated that it is conscious of the facts that High Court in exercise of its jurisdiction, should not enter into the domain of policy matters. However, while dealing with a very delicate issue and that too at a point of time when situation is very critical.

In the present circumstances, Court stated that it would like to go further into this issue with the assistance of ICMR, State Government and applicants who raised the particular concern.

Thus, Court called upon the ICMR to answer the following questions:

[1] What is the rational behind its testing policy?

[2] In what manner the ICMR wants the private hospitals / laboratories to get accredited? We would like to understand from the ICMR as regards the procedure which the private hospitals / laboratories need to undertake for the purpose of conducting the COVID­19 test.

[3] What are the guidelines of the ICMR with regard to the testing through the private laboratories?

[4] Whether the guidelines issued by the ICMR are statutory in nature?

[5] Whether such ICMR guidelines are binding upon the State Government or they are only recommendatory in nature?

[6] Whether without any prescription from any Physician, an individual can go to designated private hospital / laboratory for the purpose of testing?

Court asked State Government to furnish the following information:

[1] How many private laboratories are there in the State of Gujarat recognised by the ICMR / or COVID­19 testing?

[2] In what manner a private hospital / laboratory can apply with the ICMR if it intends to carry out the COVID­19 test?

[3] How many pathological laboratories are there in the State of Gujarat, who may not be designated for the purpose of the COVID – 19 test, but, still well­ equipped to perform such test?

[4] Whether any pathological test / diagnosis is a fundamental right of the citizens of this country? To put it in other words, whether pathological testing / diagnosis is one of the facets of the right to health as embodied in Article 21 of the Constitution of India?

[5] Whether the State Government can evolve a policy of its own based on the guidance issued by the ICMR contrary to the fundamental right of its citizens with regard to the pathological test / diagnosis?

Bench felt appropriate to deal with a very urgent issue:

Whether or not to wait for the approval of the Superintendent of the GMERS, Ahmedabad and the District Health Officers in other districts before testing for COVID­19?

Disease is a natural catastrophe that fells its victims unpredictably.

On examining the guidelines of ICMR regarding testing and the three member committee report of the State Government, certain categories of patients are enumerated in the report where testing should be done.

In Court’s opinion, categories of patients, as referred above, would not be insisted for an approval from Superintendent of GMERS, Ahmedabad or the DHO for other districts, but the COVID­-19 testing should be done forthwith without any delay and only intimation of such patients may be forwarded to the  authorities concerned by the treating consultants.

Thought Court also gave clarification with regard to persons who would be categorised in the above category that the COVID-19 testing by treating Physician or Surgeon would require approval to be obtained but the same should be granted within 24 hours.

No one should be condemned to a life below the basic level of dignified human existence.

Civil Hospital

Court called upon the Advocate General to give a fair idea with regard to the condition prevailing as on date in the Civil Hospital.

Court directed the State Government to concentrate on the following issues to maintain the level of administration and functioning of Civil Hospital in the interest of patients and specialists, doctors, paramedical and all others serving at the Civil Hospital:

[1] There should be no shortage of manpower in all categories: specialists, doctors, nurses, servants, technicians, physiotherapists etc;

[2] The patients admitted in the COVID Hospitals are demanding attention and care in terms of the medical care protocols required for proper treatment. There are different medical protocols for different categories of patients. There could be severely symptomatic patients, there could be moderately symptomatic patients and there could be mild symptomatic patients and for each of the categories of such patients, the protocols to be followed are different. It is alleged that the medical protocols required for different categories of patients are not being strictly followed.

[3] There is another circumstance which relates to the COVID patients. No Attendants are allowed to assist and take care of the patients. Normally admitted non­COVID patients are allowed one attendant who takes care of their hygiene, their food, their daily necessities. However, for COVID patients, such care is to be taken by the Nurses, attendants and other staff of the hospitals.

[4] Although not confirmed, but, there are reports both in the print and digital medias that the COVID patients have lost their lives on account of proper care and attention not being provided to them. It has also come to our knowledge on account of dehydration and other negligence, COVID patients have lost their lives.

[5] There are also reports that necessary precaution are not being taken for the attending doctors and staff in terms of providing essential protective gadgets, consumables, PPE kits, etc. They cannot be put to risk under any circumstances.

All necessary medical protocols, as are laid down, for different categories of patients, should strictly be adhered to so that no life is lost because of any kind of negligence or non­ attendant.

Further, the Court stated that, Health Minister of the State; the Chief Secretary, Health Department and all other authorities to keep a very close watch on the administration and functioning of the Civil Hospital. There should not be any laxity in this regard.

A very disturbing thing was brought to the notice of the Court by Counsel Brijesh Trivedi, that, Health department is unable to withstand the pressure and in such circumstances, they may start restricting the admission of the COVID-19 patients in Civil Hospital.

Thus, the Court wants that the Civil Hospital should function at its full strength. Not a single bed should be kept vacant. If the Health Department is not able to withstand the pressure, then it should immediately make necessary arrangements to increase the strength of the doctors, nursing staff, etc.

In its parting statements, Court held that,

Ordinarily, the High Court would not interfere with the functioning of the State Government.

The Court steps in by mandamus when the State fails to perform its duty. The true test of an efficient Government can be determined from its performance in times like the present one.

All that we are doing is to remind the State Government of its constitutional obligations and the directive policies of the State.

If Court finds any remiss, negligence or carelessness, we shall come down heavily.

Bench also expressed it’s anguish over the unnecessary debates and comments that are going on as on date on the social media and other platforms.

PILs are not meant to advance the political gain and also to seek any political mileage. The Public Interest Litigation should never be made a political battle.

Court with regard to politicising the issues, stated that,

Merely criticising the government in power is not going to magically cure people of COVID 19, nor is it going to to make the dead come back to life.

Simply highlighting the flaws and gaps in the State’s handling of the situation only creates fear in the minds of people. People are least concerned about political ideologies and rivalries when their lives are at stake.

Thus, Court requested with regard to be being very careful before commenting or entering into any debate with regard to Court Orders.

If the State Government would not have been doing anything, as alleged, then probably, by now, we all would have been dead.

Matter is to be posted on 19th June, 2020. [Suo Motu v. State of Gujarat, 2020 SCC OnLine Guj 836, decided on 29-05-2020]

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