COVID 19Hot Off The PressNews

Union Health Ministry has noted that in some large States, symptomatic negative cases tested by Rapid Antigen Tests (RAT) are not being followed up by RT-PCT testing.

The Guidelines of ICMR as well as the Union Health Ministry clearly state that the following two specific categories of persons must necessarily be retested through RT-PCR tests:

  1.  All symptomatic (fever or cough or breathlessness) negative cases of Rapid Antigen Tests (RAT).
  2. Asymptomatic negative cases of RAT that develop symptoms within 2 to 3 days of being tested negative. 

In this background, the Union Health Ministry and ICMR have jointly written to all the States/UTs and urged them to ensure that all symptomatic negative cases of RAT are mandatorily retested using the RT-PCR test. This is necessary to ensure that such symptomatic negative cases do not remain untested and do not spread the disease among their contacts. This will also ensure early detection and isolation/hospitalization of such false negatives. It has also been reiterated in the joint letter that while the RAT is being used to increase access and availability of testing in the field, RT-PCR remains the gold standard of COVID tests.

The Union Health Ministry has also urged the States/UTs to urgently establish a monitoring mechanism in every district (a designated officer or a team) and at the State level to follow up such cases. These teams shall analyse details of RAT conducted on a daily basis in the Districts and State and ensure that there are no delays in retesting of all symptomatic negative cases.

The aim of States/UTs should be to ensure that no potentially positive case is missed out. They have also been advised to undertake an analysis on a regular basis to monitor the incidence of positives during the RT-PCR tests conducted as a follow-up.


Ministry of Health and Family Welfare

[Press Release dt. 10-09-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka, Chief Information Commissioner, noted that the RTI application seeking very pertinent information with regard to COVID-19 pandemic was shuttled between one public authority to another and held that the Ministry of Health and Family Welfare shall collate all the information and furnish the same to complainant and on its’ website.

Complainant sought records by way of his RTI application on the following points:

  • Date when the Government of India first received information on the coronavirus/Wuhan virus/ virus affecting China.
  • Whether any communication was received by the Government of India about a possible pandemic like situation in India between the period of November 2019 to March, 2020?
  • Copy of the minutes of meeting that took place into the possibility of declaring coronavirus a health emergency or not between the period of March 5th to March 14th, 2020.
  • Whether the Government of India/any of its ministries or departments had received warnings/alerts/communication from the World Health Organisation on the possibility of coronavirus affecting India?
  • Whether any internal reports on a possibility of a pandemic like situation arising in India was communicated within the Ministry or its departments?
  • Any intelligence information on the coronavirus diseases originating from China possibly affecting India in future?
  • Whether the Government of India/this Ministry or its various departments sought China’s assistance in getting the sample of Virus?
  • Was China requested to share virus genetic sequence?
  • On which date did ministry of health first communicated the information of Virus possibly affecting India to PMO?
  • When was the issue of inadequate PPE discussed in the Ministry?
  • Whether additional funds were sought to fight against the virus. If so the date on which the first request and subsequent requests were made and to whom be furnished?
  • Whether the Ministry proposed a ban on incoming Chinese citizens to India?
  • Whether the ICMR received any reports/communications/internal warnings/memos/internal reports during the period of November 2019 to March 2020 about the possibility of a pandemic like situation in India due to the virus: To this ICMR responded that all the information pertaining to circulars, notifications, etc, is available on the ICMR website.
  • Whether the Government of India/this Ministry or its various departments was monitoring the situation in China and its possible effects on India?

To almost all the above queries, ICMR responded with a standard response — Not pertains to ICMR.

Complainant remained dissatisfied with the respondent’s response.

RTI Act

Commission observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of public who having to seek information should be an exception.

Another significant observation was that, an open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Accountability

Several decisions are being made by the Governments involving huge interventions in the healthcare impacting daily lives of billions of people, hence it is essential that the decisions are thoroughly documented in order for the Government to remain accountable.

Information pertaining to COVID-19

Complainant sought very pertinent information with regard to COVID-19 situation, which could not be made available by the Ministry of Health and Family Welfare.

Commission held that authentic, verified and cogent reply based on factual information needs to be furnished to the complainant as also disclose on the Public Authority website for the benefit of public at large.

Secretary, Health & Family Welfare was advised to have this matter examined at an appropriate level and the Nodal Authority so notified should furnish all the details sought by the Complainant in a clear, cogent and precise manner within a period of 30 days.

In view of the above complaints were disposed of. [Saurav Das v. CPIO, 2020 SCC OnLine CIC 626, decided on 23-07-2020]

Case BriefsCOVID 19High Courts

Bombay High Court: While deliberating upon the instant petitions, wherein various issues were raised vis-à-vis steps taken by the Maharashtra Government and the local authorities of the State to combat the issues arising due to the spread of Covid-19, the Division Bench of Dipankar Datta, C.J., and A.A. Sayed, J., issued certain directions to the State Government and the local authorities regarding the areas where they can further improve upon. The Court also observed that in view of the extraordinary situations emerging due to Covid-19, it is all the more imperative that the Government and the citizens, work together in order to put up a strong fight before the adversary that is Covid-19.

The instant petitions raised the following grievances-

  • Failure and/or neglect to provide testing facilities for frontline/healthcare workers at non-COVID hospitals/wards; Absence of  PPEs for healthcare workers treating non-COVID patients
  • Reluctance of the State to introduce capping of prices/charges for pathological tests; omission to reserve beds in private hospitals for the weaker sections in terms of the provisions of the Bombay Public Trusts Act, 1950
  • Unhealthy conditions in quarantine centres
  • Despite not being registered as a drug for the cure of COVID-19, Hydroxychloroquine (hereafter HCQ) is being administered thus contravening the New Drugs and Clinical Trial Rules, 2019
  • There are no telephonic helplines in cities other than Mumbai
  • The Municipal Corporation of Greater Mumbai (hereafter MCGM) War room Dashboard contains incomplete information regarding the availability of beds; the data is available, is inaccurate. 
  • Private hospitals ought to be reined in so that the patients are not required to bear exorbitant charges for treatment and care

The respondents via their counsel A. A. Kumbhakoni, Advocate General and A.Y. Sakhare, submitted before the Court that detection of COVID patients; arranging facilities for testing; ensuring vigil measures in order to contain the spread of virus; ensuring the common people are well provided with essential items for their sustenance and at the same time easing the lockdown norms in order to allow the economy to stabilise; all such issues are essential matters governance and therefore should be left to the Government to be dealt in order to prevent the spread of Covid-19.

Perusing the grievances raised in the petitions, the Court observed that the duty that the State owes to its citizens cannot be avoided by taking cover under the shield of policy matters. However, the Court also noted that, “the nation expects service, from each one of its citizens as well”. Concluding the judgment, the Bench issued the following directions for the State Government and the Local Authorities-

  • The respondents were directed to proceed in the manner prescribed by the ICMR in the event any frontline healthcare worker at non- COVID hospital or ward wishes to get themselves tested.
  • Vis-à-vis distribution of PPEs, it was directed that the MCGM must ensure rational need-based distribution and leave no room for complaint in regard to its distribution and the other kits in keeping with the demands of the situation.
  • The State Government should spread the net of free testing high and wide to cover the maximum number of people in distress and to extend to the public the facilities as per the Directive Principles of State Policy enshrined under Art. 47 of the Constitution.
  • Regarding the administration of HCQ, the Court stated that same has not been banned by the guidelines of the ICMR; there is no reference to any specific incident where administration of HCQ has proved fatal, therefore the Court cannot dissuade the respondents from administering HCQ as prophylaxis, till such time the ICMR prescribes something to the contrary. However, it should not be administered to children below the age of 15 years and to pregnant and lactating women.
  • State Government was directed to ensure that other municipal corporations State must emulate the MCGM’s helpline (1916) and make available real-time information.
  • MCGM directed to improve the contents of the War room Dashboard and make it effective by providing complete contents of the Dashboard on its website for the benefit of the general public.
  • Observing that non-COVID patients too have the Right to Health, the Court directed the respondents to take all such steps at its disposal to ensure that non-COVID patients do not suffer for want of adequate facilities.
  • State Government directed to consider an increase in the budgetary allocation for public healthcare for setting up more modern facilities to cope up with similar challenges in the future.

[Jan Swasthya Abhiyan v. State of Maharashtra, PIL-CJ-LD-VC-21/2020, decided on 12-06-2020]

Case BriefsCOVID 19High Courts

Delhi High Court: A Division Bench of D.N. Patel, CJ and Prateek Jalan, J., directed GNCTD and Centre that, the mobile application developed by Delhi Government — “Delhi Corona” needs to be updated without too much a time lag, so that the information being received by the public is current.

Amicus Curiae, Om Prakash pointed out that the Mobile Application namely “Delhi Corona Mobile Application” developed by Delhi Government is not being regularly updated.

Further it was submitted there had been a mismatch of the facts and data released by the Government/private hospitals in Delhi especially with regard to the availability of the beds and ventilators.

Helpline numbers as provided by Govt. of NCT of Delhi, are not properly working.

Further he added to the submissions that, nodal officers appointed by the Delhi Government should be the ones vested with the responsibility to monitor the allotment of the beds in the Government as well as private hospitals, so that these officers can keep a check on the hospitals which are denying admission to the corona patients even though the beds are available with them.

Amicus Curiae submitted that real time updation of data should be done by the hospitals or data should atleast be updated every 8 hour and further no denial in testing and asymptomatic patients should also be tested for COVID-19 immediately.

Standing Counsel for GNCTD pointed out various steps initiated by GNCTD like:

  • Centralized toll-free helpline number 1031 has been developed by merging all the helplines. Government of NCT of Delhi is in the process of further augmenting the toll-free helpline No. 1031 by adding 50 more hunting lines enabling callers to be connected swiftly to an operator.
  • Standard Operating Procedure has also been evolved for receiving calls and effectively responding to the callers.
  • Special helpline number dedicated only to the Corona positive patients/cases has recently been initiated. There are district-wise ground teams assigned for effective surveillance of Corona.
  • Much of the district-wise distribution data that Delhi receives from ICMR is incorrect, resulting in inordinate delay in the geo-station mapping carried out by authorities/agencies. Thus, there is usually a delay caused in contacting the patient who has tested positive after he has received the lab-report and in the meantime patients tend to panic.
  • Out of 209 ambulances of the Centralized Accident and Trauma Services (CATS) available overall, 136 are exclusively dedicated for COVID patients. 125 additional cabs have been hired by Government of NCT of Delhi from private operators for non-serious patients.
  • Data on Mobile Application namely “Delhi Corona” is not getting uploaded but the ID and passwords have been given to the hospitals concerned and these hospitals are directly uploading the data regarding availability of the beds, ventilators, etc.
  • Four Grievance Officers have been appointed for redressal of complaints regarding availability of the ambulance, hospital, beds and ventilators, etc.

Decision of the Bench

Bench on perusal of the submissions, stated that there is a need for real time updation of the data by all hospitals.

Thus, Court directs GNCTD as well as Centre that they shall take all necessary steps for ensuring real time updation of the data, without too much a time lag, so that the information being received by the public is current.

If any Committee is appointed by GNCTD, the said Committee will also take note of this fact that there shall be real time updation of the data on the above mentioned mobile application.

Court directs Centre as well as GNCTD that testing shall be carried out by the Central as well as State Government run hospitals, subject to availability of testing kits with priority be given to persons approaching for test on the recommendation of a doctor.

Matter to be listed on 25-06-2020. [Court on its own motion v. State (NCT of Delhi), 2020 SCC OnLine Del 634 , decided on 08-06-2020]
Case BriefsCOVID 19High Courts

Bombay High Court: A Division Bench of R.K. Deshpande and Amit B. Borkar, JJ., while addressing a petition, held that,

“…neither the Central Government nor the State Government can keep the fate of the frontline workers hanging and compel them to perform their jobs and discharge the duties without fear or assurance of safety and protection of their own life and the lives of the family members.”

“All asymptomatic frontline workers working in hospitals & containment zones in Vidarbha region entitled to be tested for COVID-19 on RT-PCR  method.”

COVID-19 has spread its tentacles all over the world, which is fighting a war against it. The population of the infected persons is on steep rise and the three major challenges are as follows:

  • to prevent the spread-over of the disease Coronavirus
  • to detect the persons infected with the disease and its source, i.e. contact tracing, and
  • to treat the patients of the disease Coronavirus.

The present petition had been filed seeking to direct ICMR to frame appropriate appropriate guidelines for conducting the Rapid Antibody Test and RT-PCR Test of doctors, nurses, paramedical staff, pharmacists, police personnel, etc. (frontline workers) attending the COVID-19 facilities and accordingly to take such tests to safeguard their lives, which is the guarantee under Article 21 of the Constitution of India.

Another relief is to release all the COVID-19 suspects admitted in the Isolation Wards / Quarantine Wards having tested negative in RT-PCR Test with immediate effect.

The other reliefs claimed include the fixation of price of the Rapid Antibody Test Kit for COVID-19 and to supply it to all the private and government hospitals and nursing homes with a direction to take the first step of screening of non-COVID patients before admitting in the hospital.

Petition also sought the directions in respect of home quarantine and reservation of 50% of beds for COVID-19 patients in all the registered private hospitals and nursing homes.

Rapid Antibody Test of the frontline workers

It is the contention of the petitioner that the test should be undertaken in respect of every person in the containment zones.

Bench in regard to the above aspect stated that,

What we find is that even if the Rapid Antibody Test shows positive result, it is not the conclusive test to hold that the patient is infected with the disease. Similarly, if the test shows negative result, still it cannot be said that the person is not infected with the disease.

According to the respondents, the only conclusive test to determine as to whether a person is infected with the disease is the RT-PCR Test.

Thus in view of the above, Court did not find any point in directing the authorities on the point of Rapid Antibody Test of the frontline workers.

To release all COVID-19 suspects admitted in the Isolation Wards/Quarantine Wards having tested negative in the RT-PCR Test

Commissioner, Nagpur Municipal Corporation made a statement, wherein the following was stated:

“For hospital isolation patient can be discharged after 10 days of symptom onset and no fever for 3 days. There will be no need for testing prior to discharge.”

Thus, in view of the above statement Court did not give any further directions in the above-regard.

Home Quarantine and to prevent contamination of COVID-19 and Reservation of 50% beds in private hospitals

For the above relief sought by petitioner, Court stated that it is a policy decision which is to be guided by instructions issued by ICMR, Centre and State Government.

Further, the ICMR guidelines already include testing of health-care workers and it is critical to understand that there is globally a very limited availability of testing reagents/kits.

Thus, the contention of the petitioner that the RT-PCR Tests should be conducted on frontline workers, also cannot be accepted by the Court.

Further the High Court stated that,

COVID-19 disease of Coronavirus is symptomatic as well as asymptomatic. It may be that an asymptomatic patient carries the disease.

Hence, there cannot be any distinction between all symptomatic contacts of laboratory confirmed cases, including those of health-care workers and of asymptomatic direct and high risk contacts of health-care workers with the laboratory confirmed cases.

Thus, all frontline workers coming in contact of laboratory confirmed cases are entitled to be tested on RT-PCR method.

Commissioner, Nagpur Municipal Corporation, is the “Empowered Officer” under the provisions of Epidemic Diseases Act by the State Government and accordingly the notifications are issued from time to time by him to secure the object and purpose of the enactment.

Bench also observed that, by invoking the provisions of the Epidemic Diseases Act and the Disaster Management Act, the State and Central Government have taken upon themselves an obligation and the responsibility under Article 47, as a part of guarantee under Article 21 of the Constitution of India to save and protect the lives of the people of this nation, more particularly the frontline workers, from COVID-19 (Coronavirus) Pandemic Outbreak.

Life of frontline workers is more precious as they are warriors and saviours, compromising their own life at the stake to save the lives of others.

As observed by the Single Judge Bench of the Court, the Division Bench of this Court also endorses and confirms that the State owes its duty to the frontline warriors to take additional steps or measures, even if the guidelines do not envisage such testing.

High Court also stated that “State is be duty bound to take additional measures and ensure the minimization of the risk to the medical, police personnel and all frontline workers, to protect the fundamental right to life under Article 21 read with the duty under Article 47 of the Constitution of India.”

Therefore, to summarise the order, following has been passed by the bench:

  • all asymptomatic frontline workers working in the hospitals and the containment zones in the entire Vidarbha region, shall be entitled to be tested for COVID-19 disease or Coronavirus on RT-PCR method on expressing their willingness, if they are found to be in direct and high risk contact of laboratory confirmed cases.
  • ICMR directed to frame policy and prescribe protocol for periodical testing of frontline workers

In the above view, petition was disposed of.

[Citizen Forum For Equality v. State of Maharashtra, 2020 SCC OnLine Bom 695 , decided on 01-06-2020]

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Bimal Julka (CIC) observed that, important decisions are being made by the Governments involving huge intervention in the healthcare and daily lives of billions of people as they seek to secure social, economic and cultural wellbeing of its population and uphold the rule of law.

It is essential that the decisions themselves and the senior decision makers involved are thoroughly documented in order for the Governments to remain accountable both during and after the crisis for future generations to be able to learn from these actions.

Complainant sought information regarding district-wise number of hospitals and healthcare facilities called by any other name, designated as COVID-19 treatment centres;  criteria for designating them as COVID-19 treatment centers; hospitals and healthcare facilities whose status as COVID 19 treatment centers was withdrawn, etc which should be available with the M/o Health and Family Welfare (M/oH&FW), Directorate General of Health Services (DGHS) or the Indian Council of Medical Research (ICMR).

Reasoning for information sought:

Complainant submitted that the suo motu disclosure of information would immensely benefit the suspected COVID-19 patients or their relatives to be informed and take timely action to approach the appropriate healthcare facility for treatment.

ICMR

He further cited the example of mapping of designated COVID testing centers by the ICMR on Google Maps and stated that similarly information regarding COVID-19 Treatment Centers could also be displayed on Google Maps which would be beneficial to the entire citizenry.

Respondent (MoHFW, PH Section) re-iterated the response to the RTI application and stated that the information sought was not available with them and the application was transferred to the CPIOs concerned.

Commission’s Observation and Decision

Commission at the outset was appalled to learn that basic information pertaining to the District Wise Designated COVID treatment centres could not be provided to the information seeker by any of the Respondents.

As per the provisions of the RTI Act, 2005, the CPIO acts as the pivot for enforcing the implementation of the RTI Act, 2005 and it is their responsibility to facilitate flow of information instead of simply shifting the onus of disclosing the same to other Public Authority/ officials.

Commission further observed that a voluntary disclosure of all information that ought to be displayed in the public domain should be the rule and members of the public who having to seek information should be an exception.

An open government, which is the cherished objective of the RTI Act, can be realised only if all public offices comply with proactive disclosure norms.

Commission held that very pertinent information pertaining to the COVID-19 pandemic situation was sought by the Complainant which could not be made available by any of the Respondent. The fact that the application shuttled from one Division of the Public Authority to another indicates that there is a very urgent requirement for notifying a Nodal Authority in the M/o H&FW/ DGHS to compile, collate and consolidate the information sought in the RTI application and suo motu upload the same on the website of the Public Authority.

Therefore, the Commission advises the Secretary, M/o H&FW to designate an officer of an appropriate seniority as a Nodal Officer to examine the matter and suo motu disclose the information sought in the RTI application on the website of the Public Authority within a period of 15 days.[Venkatesh Nayak v. CPIO & CMO (EMR), MoHFW, 2020 SCC OnLine CIC 346 , decided on 05-06-2020]

Case BriefsCOVID 19High Courts

Telangana High Court: In the instant PIL wherein the petitioner challenged the Government Order Rc. No. Spl /COVID-19/DMHO/HYD/2020 dated 11-4-2020 (hereinafter the G.O.) via which the State of Telangana did not permit well equipped private hospitals and diagnostic centres to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment, the Division Bench of M.S. Ramchandra Rao and K. Lakshman, JJ., held that the aforementioned G.O. is not only violative of Arts. 14 and 21 of the Constitution but also of the principles of natural justice, as it is not a reasoned Order. It was also held that the State cannot compel its residents to get their testing done only in Government designated hospitals, especially when the people are willing to pay for the tests conducted by ICMR approved private hospitals.

The petitioner via his counsel V. Venkata Ramana, argued that the G.O. is arbitrary and illegal and therefore the Court should set it aside and direct the Government of Telangana to allow well equipped private hospitals and test centres to deal with Covid-19 crisis as well. The petitioner further contended that the G.O. in question, does not state reasons as to why the private hospitals and diagnostic centres have not been allowed to screen people for Covid-19 virus. It was stated that the Government hospitals that have been identified for the purpose of testing and treatment of Covid- 19 patients have inadequate facilities; and that there are several private hospitals that are willing to screen Covid-19 patients. It was submitted that S. 2 of the Epidemic Diseases Act, 1897, does not mention anything that enables the State Government to restrict private hospitals from conducting tests for determination of the disease or from treating the patients with symptoms. Furthermore all citizens should have a right to choose where they can undergo tests and treatment if tested positive for COVID-19, and the respondents cannot compel them to use only Government operated facilities. Appearing on behalf of the Government, the Additional Advocate General denied the petitioner’s contention and argued that the petitioner has simply relied on news reports to substantiate his plea. However the respondents failed to explain the legal basis for the State to compel the citizens to have samples tested only in State identified laboratories. Given the importance of the matter, the Court deemed it fit to suo motu implead the Indian Council of Medical Research.

Upon proper perusal of the facts and contentions, the Court pointed out that the G.O. does not state reasons to exclude private hospitals from testing and treating, therefore it essentially violates a well known principle of Administrative Law – every action of the State which affects the rights of citizens must be supported by reasons so that a Court, while judicially reviewing it, know that there was application of mind by the issuing authority. The Court observed that given the population of the State, only designated government hospitals cannot deal with the current crisis, therefore if there are people who are able to afford private testing and treatments, then this can take away a great deal of load from the government resources, which then can be utilised better to provide facilities to the poorest of poor. Finally, appreciating the petitioner from bring such an important matter to Court’s notice, the Bench held that the residents have right to get their samples tested either from Government approved hospitals or ICMR approved private hospitals. The Court directed all private hospitals, who wish to provide treatment/ isolation for COVID-19 patients (other than the ones already granted such approval by the ICMR), shall make an application to the ICMR offering their facilities for the said purpose. [Ganta Jai Kumar v. State of Telangana, 2020 SCC OnLine TS 482 , decided on 20-05-2020]

COVID 19Hot Off The PressNews

Testing is one of the most crucial weapons to fight COVID-19 and ICMR is doing everything it can to ramp up testing. This requires procurement of kits and supplying them to states. This procurement is being undertaken when globally there is huge demand for these test kits and various countries are applying their full might, monetary and diplomatic, to acquire them.

ICMR’S first attempt to procure these kits did not elicit any response from the suppliers. Its second attempt got adequate responses. Of these responses, taking sensitivity and specificity in mind, kits of 2 companies (Biomedemics and Wondfo) were identified for procurement.  Both had the requisite international certifications.

For Wondfo, evaluation committee got 4 bids and the corresponding quotes received were Rs. 1,204, Rs. 1,200, Rs. 844 and Rs. 600. Accordingly, bid offer of  Rs. 600 was considered as L-1.

In the meanwhile, ICMR also tried to procure the kits directly from Wondfo company in China through CGI. However, quotation received from direct procurement had the following issues:

    • Quotation was FOB (Free on Board) without any commitment on logistics issues.
    • The quotation was on the basis of 100% direct advance without any guarantees.
    • There was no commitment on timelines.
    • Rates were communicated in US dollars without any clause for accounting for fluctuations in prices.

Hence, it was decided to go Wondfo’s exclusive distributor for India for the kit who quoted an all inclusive price for FOB (logistics) without any clause for advance.

It needs to be also remembered that this was the first ever effort by any Indian agency to procure such kits and the rate quoted by the bidders was the only reference point.

After receipt of some supplies, ICMR has again conducted quality checks on these kits in field conditions.  Based on scientific assessment of their performance, the order in question (Wondfo) along with order in respect of another make found under-performing have been cancelled.

It needs to be stressed that ICMR has not made any payment whatsoever in respect of these supplies. Because of the due process followed (not going for procurement with 100% advance amount), GoI does not stand to lose a single rupee.


Ministry of Health and Family Welfare

[Press Release dt. 27-04-2020]

[Source: PIB]

COVID 19Hot Off The PressNews

1. ICMR advocates that RT-PCR throat/nasal swab test is the best use for diagnosis of COVID 19. RT-PCR test detects the virus early and is the best strategy to identify and isolate the individual.

2. Several States have procured rapid antibody test kits and on their demand, ICMR has also provided these kits with clear instructions that they are to be used only for surveillance purposes. Some States have raised issues regarding their performance during the testing exercise that they have undertaken.

3. ICMR, thereafter, has also evaluated the kits of Guangzhou Wondfo Biotech and Zhuhai Livzon Diagnostics in field conditions. The results have shown wide variation in their sensitivity, despite the early promise of good performance for surveillance purposes.

4. In view of this, States are advised to stop using these kits procured from the above- mentioned companies and return them to be sent back to the suppliers.

*Advisory can be accessed here: ADVISORY


INDIAN COUNCIL OF MEDICAL RESEARCH

[Advisory dated 27-04-2020]

Case BriefsCOVID 19High Courts

Public interest must outweigh private gain.

Delhi High Court: Najmi Waziri, J., has capped the price of the COVID-19 Rapid Test Kit at Rs 400 per unit which is 40% lesser than the price of Rs 600 per unit approved by ICMR.

The Court was considering a petition filed by Rare Metabolics Life Sciences Pvt. Ltd., the exclusive distributer of medical products imported into India by the respondent, Matrix Labs. The petitioner was seeking the release of 7.24 lakh COVID-19 Rapid Test Kits and other COVID-19 related materials imported by the respondent from People’s Republic of China. On 25th March, the petitioner had desired to import 10 lakh WONDFO SARS CoV-2 Antibody test kits, for which proforma invoice was requested from the respondent. Subsequently, on 27th-28th March, ICMR placed an order with petitioner’s distributor for 5 lakh COVID-19 Rapid Test Kits at the rate of Rs 600 per unit. The total order was for Rs 30 crores. Of the said 5 lakh kits, 2.76 lack kits have already been delivered to ICMR and the remaining 2.24 lakh kits were expected to be delivered very shortly.

The petitioner submitted that it has already paid Rs 12.75 crores to the respondent, which amount covers the cost of 5 lakh kits. It was submitted that it will pay the balance when payment is received from ICMR. Whereas, the respondent contended that the entire amount was to be paid upfront. The Court stated that be as it may, since the kits are required in the country on urgent basis, the remaining 2.24 lakh kits shall be delivered to ICMR the moment it lands in India and the balance payment due to respondent shall be paid by the petitioner within 24 hours of receiving payment from ICMR.

The Court was informed that the actual cost paid to the supplier of these 5 lakh test kits is Rs 11.25 crores and ICMR will pay Rs 30 crores for purchasing the same, which means that Rs 18.75 crores will be shared by intermediaries without any value addition to the goods.

The Court was of the view that the profit mark-up of 61% on the landed cost of these kits is much on the higher side. It stated that

“The country is going through an unprecedented medical crisis affecting public order. People have been cloistered in their homes or constrained to stay wherever they were on 24th March 2020. The economy is virtually at a standstill for the last one month. There is an element of disquiet apropos one’s safety. For people to be assured that the pandemic is under control and for governments to ensure and for agencies engaged in the frontline battle to safeguard people’s health, more kits/tests should be made available urgently at the lowest cost, for carrying out extensive tests throughout the country. Public interest must outweigh private gain. The lis between the parties should give way to the larger public good.”       

In view of the above, the Court ordered that the kits should be sold at a price not beyond Rs per kit, inclusive of GST.

The Court was also informed that State of T.N. had placed an order of Rs 50,000 test kits with the respondent at the rate of Rs 600 per unit.

Accordingly, the Court directed that from the other 5 lakh kits (apart from those 5 lakh to be delivered to ICMR), 50,000 shall be excluded for the State of T.N. and the remaining 4.5 lakhs would be available to the respondent to be disposed of in the terms mentioned above. [Rare Metabolics Life Sciences (P) Ltd. v. Matrix Labs, 2020 SCC OnLine Del 569 , decided on 24-4-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J.noted the following while addressing the present petition,

“…push forward the efforts taken by this nation including the State of West Bengal in fighting the pandemic COVID­19 which is a matter of grave concern for all stakeholders and the entire citizenry of this nation.”

Petitioner sought direction to the respondent authorities to make widespread and rapid testing among the population of West Bengal for COVID 19 for early detection and prevention of further spread.

Further direction on the respondent authorities is sought for taking immediate step to convert Calcutta Medical College for use only to house COVID­19 patients and also for improving health infrastructure by arranging sufficient test kit and/or protection measures for doctors to make it compatible to combat the present pandemic situation.

Adding to the above, petitioner also sought direction to ensure supply of food materials to all sections of marginalized people including migrated workers, pregnant women, young mothers and children.  

Petitioner sought an order from the Court directing the State to prepare and submit before the Court a plan for rapid testing and/or increasing the amount of testing for COVID­ 19 among the population in West Bengal

Bench stated that while the Government has issued advisory to the Health Authorities in the State regarding testing of samples as per ICMR’s latest testing protocol, it tends to indicate that more than 300 samples are tested daily.  

“…it is necessary that the official respondents give a deeper look to the requirement of more number of samples being collected and subjected to tests on war­ footing.”

Court also stated that, having regard to the fact that the ICMR testing protocol and WHO guidelines require adherence to effective screening on war ­footing, Bench needs to be told by the State as to the acceleration of the rate of sample collection and testing which is being obtained on the aforesaid basis.

State Government is expected to place a report on the following:

quarantine, managing the COVID­19 cases, that is to say the doctors, nurses, para­medical persons and the other health service oriented persons as well as those coming into regular close contact with such situation, there is deficit in facilities for their protection and safety from the point of view of health.

WHO and ICMR being expert authorities in the field, their guidelines and advisories are required to be followed by all stake­holders.

Matter to be posted on 23-04-2020. [Dr Faud Halim v. State of W.B., 2020 SCC OnLine Cal 738 , decided on 17-04-2020]

COVID 19Hot Off The PressNews

Chewing Smokeless Tobacco products (Gutkha, Paan masala with tobacco, Paan and other chewing tobacco products) and areca nut (supari) increases the production of saliva followed by a very strong urge to spit. Spitting in public places could enhance the spread of the COVID19 virus.

In view of the increasing danger of COVID-19 pandemic, it is an appeal to the general public to refrain from consuming the smokeless tobacco products and spitting in public places during the COVID epidemic.


Indian Council of Medical Research