COVID 19Hot Off The PressNews

With the aim to remove all impediments in testing, Preeti Sudan, Health Secretary and Dr Balram Bhargava, DG (ICMR) urged the States/UTs to take immediate steps to facilitate and ramp up testing. They have reiterated that ‘test-track-treat’ is the key strategy for early detection and containment of the pandemic.

Pointing out that in some States/ UTs, the capacity utilization of the testing labs, particularly the ones in private sector, is grossly sub-optimal, States/UTs have been strongly advised to take all possible steps to ensure full capacity utilization of all COVID-19 testing laboratories in the State/ UT.

States/UTs have been advised to facilitate testing at the earliest by enabling all qualified medical practitioners, including private practitioners, to prescribe COVID test to any individual fulfilling the criteria for testing as per ICMR guidelines.

ICMR has strongly recommended that laboratories should be free to test any individual in accordance to the ICMR Guidelines and State authorities must not restrict an individual from getting tested, as early testing will help in containing the virus and saving lives. While RT-PCR is the gold standard for diagnosis of COVlD-19, ICMR has recently approved the use of a point-of-care Rapid Antigen Test for early detection of COVID-19. The test is quick, simple, safe and can be used as a point-of-care test in containment zones as well as hospitals, as per criteria specified by ICMR for testing. More such kits are being validated by ICMR to increase the available options to the citizens. ICMR has so far approved a total of 1,056 laboratories for COVID-19 testing. Of this, 764 labs are in public sector and 292 are in the private sector.

In order to facilitate testing, States/UTs have also been advised to  make efforts in ‘campaign mode’ by setting up camps/ using mobiles vans in high incidence areas to collect samples of all symptomatic individuals as well as their contacts, and get those samples tested by using rapid antigen tests. The positive individuals should be treated according to the treatment protocol and the negative ones should be tested for RT-PCR. Also, the rate for RT-PCR test by private labs should be finalized by the States/UTs. They have been further advised to make it mandatory for all labs to upload the testing data on the ICMR database as well as report to State/ District/ City authorities for surveillance and contact tracing.

In addition to ramping up and facilitating testing, States/UTs have also been urged to pay attention to ‘contact tracing’ as it holds the key to containing the virus. States have also been asked to maintain strict vigil and continue to make all possible efforts for effective management of COVID-19.


Ministry of Health and Family Welfare

Case BriefsCOVID 19High Courts

Delhi High Court: C. Hari Shankar, J., granted an ad-interim injunction and restrained police from making any investigation against Ganga Ram Hospital in an FIR filed against the hospital by the Delhi Government.

Ganga Ram Hospital — Petitioner sought interim stay of all proceedings consequent to FIR alleging commission of offence under Section 188 of Penal Code, 1860.

Background

Petitioner submitted that a reading of guidelines issued on 18th May, 2020 by ICMR revealed that it was only by the said guidelines that a specific requirement was incorporate, to the effect that all testing of COVID-19 suspected cases, whether symptomatic or asymptomatic were to be conducted by “real -time RT-PCR test only”.

On April, 20th, 2020, GNCTD issued an Order wherein following was informed:

GNCTD had created a COVID App, in which all Government/private COVID testing labs and COVID hospitals were required to fill the requisite data, to ensure proper follow-up of COVID-19 cases.

The Order required all concerned government/private hospitals to get the requisite data filled on the COVID App immediately on regular basis to supplement efforts for checking the spread of COVID-19, and also directed all government/private labs to update the COVID App on regular and immediate basis, after submission of each and every sample for testing.

On April, 30th, 2020, an Order was issued by GNCTD, wherein concern was expressed with regard to the pendency of test samples sent by districts in hospitals to various labs for COVID-19 testing, multiplicity in reports, resulting in difficulties and reconciliation of data and assessment of the number of people getting infected with COVID-19 virus.

Fulcrum of Controversy

RT-PCR App is the fulcrum of controversy in the present matter. This app was aimed at streamlining data flow of tested persons, reducing data entry at labs, speeding up declaration of results and enabling data flow of suspected cases into the system for further action at the district level.

Specimen Referral Form and the above-stated app are similar except for the fact that the app is an electronic version of the said form.

Standing Counsel, Rahul Mehra was also unable to pick out the difference between the RT-PCR app and Specimen Referral Form.

Further on 7th May, 2020 it was issued by Nursing Home Cell of the Directorate General of Health Services, GNCTD (DGHS) that no manual Sample Requisition Form will be accepted and private lab concerned would receive samples only after conforming that the details had been entered on the RT-PCR App.

Show Cause Notice to Ganga Ram Hospital

Petitioner was issued — with following of the ICMR testing protocol for testing of asymptomatic patients.

On 3rd June, 2020, an Order was issued by the DGHS observing that, in apparent disobedience of the office order dated 6th May, 2020, proscribing use of manual/physical SRFs at sample collection centres with effect from 8th May, 2020 and usage, instead of the RT-PCR App, petitioner was still not using the said App.

Petitioner was directed to explain, within two days, why it had not started using the RT-PCR App. The petitioner was also directed to stop RT-PCR sampling of COVID-19 suspects/contact cases, with immediate effect.

Petitioner informed the Court that it had identified a Data Entry Operator, for registration of the RT-PCR App as well as nine phlebotomists, whose details were annexed. Once the Data Entry Operator was registered, the petitioner undertook to enter all past entries in the RT-PCR App and to ensure compliance, with the said requirement, in future.

On 5th June, 2020 an FIR was registered against the petitioner from the office of the Deputy Secretary, health, GNCTD, alleging commission of offence under Section 188 IPC (Disobedience to order duly promulgated by public servant).

Why has the present petition been filed?

By the present petition, petitioner prays for quashing of the above-stated FIR, issuance of an appropriate write, Quashing of the Order wherein the petitioner has been prohibited from conducting RT-PCR sampling for COVID-19 suspects/contact cases, has become infructuous, as the said order has been withdrawn and the petitioner has been permitted to conduct sampling.

R. Suri and Sidharth Luthra, Senior Counsel for the petitioner and Rahul mehra, Senior Standing Counsel (Criminal) for GNCTD/State.

Decision 

Bench stated that the only allegation in the impugned FIR was clearly in violation by the petitioner with regard to the orders requiring collection of samples for COVID-19 testing, to be done only through RT-PCR App.

Further the Court stated that, there is no reference in the FIR, to this infraction, on the part of the petitioner,  in collecting samples through the RT-PCR app, having caused or obstruction, annoyance or injury, or risk of obstruction, annoyance, or injury, to any person lawfully employed, or having caused, or attempted to cause, danger to human life, health or safety, or riot or affray.

Disobedience of an order, promulgated by a public servant, is, clearly, by itself not an offence under Section 188 of the IPC.

Consequently, it has to be held that the allegations in the FIR do not disclose the commission of a cognizable offence.

An FIR need not be an encyclopaedia or contain, within it, all minute factual details, regarding the incident, which is alleged to amount to an offence. Even so, the facts, stated in the FIR, and the allegations contained therein, must disclose the commission of a cognizable offence. Else, the very registration of the FIR would be unjustified.

In Court’s opinion, the impugned FIR did not allege any impediment to human health, or loss to human life, having resulted as a consequence of the default, on the part of the petitioner, in complying with the requirement of using the RT-PCR App.

Court is aware of the fact that Regulation 18 of the 2020 COVID Regulations contains a warning, to the effect that any person/institution/organization found violating any provision of the said Regulations would be deemed to have committed an offence punishable under Section 188 of the IPC.

In the present case, violation, by the petitioner is alleged, not directly of the 2020 COVID Regulations, but of governmental Office Orders, issued thereunder.

“…criminal process cannot be initiated, against an institution, merely on the ground that such violation has taken place, sans any allegation that it has led to one of the consequences statutorily engrafted in Section 188 of the IPC.”

Thus, in view of the above terms, an ad-interim injunction, restraining the Police from investigating, consequent in the impugned FIR seems to be justified.

Petitioner-hospital is a frontliner in the war against COVID-19 pandemic.

Balance of convenience would also be in favour of interdicting, for the present, any investigation, consequent to the impugned FIR. As and when the present petition is finally decided, if it is found that no case, for quashing the impugned FIR, or the investigation following thereupon, is made out, the Police could always resume its investigation.

Hence, the stay application was allowed. [Ganga Ram Hospital v. State, 2020 SCC OnLine Del 662 , decided on 22-06-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J., while addressing a petition stated that responsible journalism includes the need to exclude irresponsible reporting by anyone involved in the print or audio visual media.

Advocate General pointed out that the present petition is essentially a Publicity Oriented Litigation because the petitioner has, by his conduct demonstrated vividly that he is using this litigation to publicize his political identity and also to encash it for enhancing his popularity in public domain.

Senior counsel for the petitioner, submitted that the fundamental right of freedom of expression cannot be curtailed in public domain.

It has been noted that, While the petitioner makes repeated complaints about the deficit in the number of sample testing, it is to be noted that there is lack of certainty as whether the rapid testing method as well as other modalities are appropriately utilized.

ICMR guidelines are, according to the petitioner, the touch stone on which the regulatory measures as well as other aspects ought to be in place. The testing of samples, test kits, mode of reference for ascertaining reason for death thereby keeping track of mortality rate attributable to Covid-19, are matters relating to scientific management of the pandemic. Union of India and the States are to respond.

Advocate General has been asked to ascertain the availability of Personal Protection Equipment (PPE) sufficient enough to be provided to all who could be called front line worriers which includes doctors, para medics, ground staff, support staff and those dealing with medical institutions and also other areas where PPE usage ought to be the norm.

State to file affidavit disclosing the availability and utilization of PPE and also testing facilities in terms of ICMR guidelines. On the same issue, the Union of India shall also place its response.

A true version of any order can be generated from the website of the Calcutta High Court.

For the above, Bench also stated that responsible journalism includes the need to exclude irresponsible reporting by anyone involved in the print or audio visual media.

Therefore, Court stated that,

those in need of information about the contents of this Court’s orders, to access the High Court website and dissuade themselves from propagating or publicizing the orders to champion the cause of anybody concerned.

[Fuad Halim v. State of W.B., 2020 SCC OnLine Cal 898, decided on 28-04-2020]