Since the World Health Organisation (WHO) declared COVID-19 as a global pandemic, health care systems across the globe, even in developed countries, have fallen apart. This isdue to a lack of preparedness by countries and the possible delayed response by the WHO. Under international law and also confirmed in the WHO Constitution, the right to the enjoyment of the highest attainable standard of physical and mental health is “a fundamental right of every human being” and central to our understanding of a life in dignity.
Health as a human right creates a obligation on every state to ensure a wide range of socio-economic factors in which every human being can lead a healthy life. The right therefore extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment. However, during the COVID-19 pandemic, states have failed to maintain basic health standards. Every day COVID-19 patients are denied treatment by medical authorities and private health institutions and in some cases patients have lost their lives due to denial of admission or treatment. The denial of treatment to patients is a gross violation of individual basic human rights enshrined under various international instruments.
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS ON HEALTH
The right to health has evolved rapidly under international human rights law, wherein there is a right not merely to health care but to the much broader concept of health. The 1948 Universal Declaration of Human Rights in Article 25 contains health and the right to health care as part of the right to an adequate standard of living. The right to health is also recognized as a human right in the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR). Article 12 of the ICESCR sets out a right to health and defines steps that states should take to realize progressively and “to the maximum available resources” the “highest attainable” standard of health. It provides specifically for a duty on states to prevent, treat and control epidemics. The International Conference on Primary Health Care (resulting in the Declaration of Alma-Ata) emerged as a “major milestone” of the twentieth century in the field of public health, as itidentified primary health care as the key to the attainment of the goal of health for all.
Regional legal instruments also provide for the right to health as a basic human right. The 1950 European Convention for the Promotion of Human Rights and Fundamental Freedoms, the 1969 American Convention on Human Rights, and the 1981 African Charter on Human and Peoples' Rights all provide that every individual shall have the right to enjoy the best attainable state of physical and mental health and State Parties shall take the necessary measures to protect the health of their people. In summary, the right to health as it is enshrined in international human rights law extends well beyond health care to include basic preconditions for health, such as potable water and adequate sanitation and nutrition.
The individual human right also includes the right to basic health care without any “discrimination on the grounds of race, age, ethnicity or any other status”. The UN has made clear that discrimination has no place in the response to COVID-19. The UN Secretary-General has warned that “it is shameful to see increasing acts of racial discrimination and prejudice as we fight the #COVID19 pandemic – a crisis that affects us all.”
The denial of treatment, resulting in the loss of life during this global pandemic is a failure of States to comply with their obligations under the international human rights instruments.
DENIAL OF HEALTH RIGHTS IN INDIA
The COVID-19 health crisis highlights the vulnerability of the Indian health care system and the impact on patients' human rights. India’s low investment in the health sector at only 1.3% of its GDP, has resulted in a severe shortage of healthcare workers and health care facilities and infrastructre. According to the Health Ministry data released in October 2019, India has only one doctor for every 11,082 people, which is more than 10 times the recommended doctor-patient ratio of the World Health Organization (WHO). With the capital city New Delhi reporting over 1000 cases a day in June and up to 3000 new cases a day by July, most hospitals are running at full capacity and beds in COVID-19 designated hospitals are filling up fast.
In one case an eight-month pregnant woman died when a frantic 13 hour hospital hunt failed to find her a bed. The victim, aged 30 years, was taken to at least eight hospitals by her husband, including public hospitals, before she died in the ambulance. In a second incident a 26 year old pregnant woman was refused admission by the district hospital and delivered a stillborn baby on the pavement outside the hospital. In an another incident officials are investigating nine hospitals in the city of Bangalore, amid allegations that a 53 year old “man died after being refused treatment at all of them”.
After the announcement of national lockdown in India, instances of discrimination in a number of Indian states made headlines when health workers and airline staff faced discrimination from their neighbours and landlords who feared they could be carriers of COVID-19. People who have been quarantined have also been stigmatized and threatened with eviction. Doctors, nurses, and paramedics have also experienced social discrimination. In addition, the state governments of Rajasthan and Karnataka made the names and addresses of people affected by COVID-19 public, putting them at risk of assault. In Delhi, Chandigarh, Maharashtra, Rajasthan, West Bengal, and Uttar Pradesh, officials marked homes where people were under quarantine, in some cases displaying their names.
The denial of human right is not limited to admission/treatment of COVID-19 patients, but includes the manner of disposing of bodies of COVID-19 victims. The Supreme Court of India in In Re: the Proper Treatment of COVID-19 Patients and Dignified Handling of Dead Bodies in Hospitals etc, (Writ Petition (Civil) No. 7/2020) has observed that hospitals are not giving due care to the keeping of bodies and not even informing family members about deaths, as a result, they are unable to attend the last rites. The court asked all states to comply with the Health Ministry guidelines while disposing of the bodies in a dignified manner, including respecting human rights and dignity.
PROTECTING THE RIGHT TO HEALTH CARE IN INDIA
The Indian Constitution does not directly provide for a right to health as a fundamental right. Obligations of the Indian state to ensure the creation and the sustaining of conditions for good health are included in the non-justiciable Directive Principles of State Policy (DPSP) in the Constitution. However, the Indian Judiciary has interpreted Article 21 (right to life) widely and has established the right to health as an implied fundamental right. In State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83, the court held that the right to health is integral to the right to life and the government has a constitutional obligation to provide health facilities. The Supreme Court of India in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426, has held that failure of a government hospital to provide a patient timely medical treatment results in violation of the patient’s right to life.
During COVID-19, the state level governments are issuing warnings to hospitals with cautions of stringent actions against denial of treatment to COVID-19 patients. In Delhi the health department issued an order warning all non-COVID private hospitals and nursing homes against denial of treatment to patients, stating that their licenses would be cancelled for non-compliance with its directives.
In June 2020 the National Human Rights Commission (NHRC) issued notice to the Uttar Pradesh state for violation of human rights as the state authorities failed to ensure the right to life and medical care of its citizens. The NHRC also raised concerns about the failure of hospitals to attend to patients, including emergency treatment for illness other than COVID-19, and has requested the Union Ministry of Health and Family Welfare to issue instructions to all states in this regard.
The increase in denial of treatment to COVID-19 patients across the globe clearly indicates that health infrastructure is collapsing and state authorities have failed to ensure basic human rights of its citizens. It is imperative that states ensure that nobody is denied treatment or discriminated against because of COVID-19. States must ensure that there are enough beds in the hospitals to treat patients and if necessary, increase COVID-19 designated hospitals. The global pandemic is an eye opener for the healthcare system across the globe. It is clear that states need to do more to improve the basic health facilities and to invest more into the healthcare system at the grassroot level.
The world health care system needs a “reboot”. A wrong public health strategy is one reason for health care system vulnerability, the lack of resources is another, which both need to be addressed. The denial of treatment to COVID-19 patients is an abuse of human rights of the individual and violates state obligations to ensure basic human rights and health care to its citizens, especially during a health crisis.
Vaibhav is a legal practitioner in India, he practices before the Supreme Court of India. Vaibhav is also a Founder & Managing Partner at YHprum Legal. He leads a firm dispute resolution and arbitration team. His practice mainly consists of human rights law, environment law, arbitration, civil litigation, primarily in the national capital Delhi Courts. Vaibhav has completed his law degree i.e. B.A., LL.B (Hons) from National Law School, Punjab.