Right To Health As Human Right Vis-A-Vis Fundamental Rights Under Constitution Of India By Chirag Sharadkumar Jani

Abstract : In today scenario the need of Hospital are very important. Hospital reserves unavailable environment in every human being life. Hospitals are currently working socio-economic and technical changes that raise concern for the quality of health care. Accreditation would be the single most important approach for improving the quality of care in hospitals.      Every Patient in the hospital must be protected their rights which encompass legal and ethical issues in the provider-patient relationship, including right to privacy, medical care quality, right information about treatment options and the right to refuse treatment.

Introduction:Patients have various concern about the quality of treatment they in facility at hospital. The increase medical awareness have central an about the quality of various health care scenario. The accreditation of hospital always establishment concern about the Patten of tenement they are delivery to the patient. National Accreditation Board for Hospitals and Healthcare (NABH) is providing accreditation to various hospitals and is also an institutional member of International Society for Quality in Health Care (ISQua). Patients’ rights form the most important standards for NABH accreditation. While quality and care is one aspect, the hospital’s organization must protect patients and their family rights during care. The hospital has to define the patient and their family rights and responsibilities, staff must be trained to protect these rights, and patients informed of their rights and educated about their responsibilities at the time of admission.

Problems faced by the patients:

• Not getting enough opportunity to talk to the doctors.
• Certain treatment methods were ignored by the doctors.
• Patients always finds hospital staff always busy and answered partly.
• Not having enough privacy while treatment especially in general ward.
  Patients always feels that they were not treated with respect and dignity.
• There is always risk in treatment procedure and methods including operation.Legal redressal requirement shouldn’t be done in quick manner.

International Human Right law provision: The article 25 of “Universal Declaration Of Human Rights” states that “everyone has the right to a standard of living adequate for the health and well being of himself and of his family including food, clothing, housing, and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control”. “The inherent dignity” and the “equal and unalienable rights of all members of the human family” formalized in 1948, the Universal Declaration of Human Rights recognized. The fundamental dignity and equality of, what is owed to the patient as a human being, by physicians and by state, took shape in large parts per basic rights of the person. The Universal Declaration of Human Rights has been instrumental and enshrining the notion of human dignity in international law, providing a legal and moral grounding and giving important guidance on critical social, legal and ethical issues . It also clarifies the relationship between human rights and right to health, including patient rights. Recognizing this challenge, the United Nations Commission on Human Rights (UNHCR) has designated a Special Report to provide that examines, clarifies and analyze the broader relationship between human rights and their health. Through PIL the Supreme Court has allowed individual citizen to approach the court directly for the protection of their Constitutional human rights.³

World scenario: Protection of patients rights: As per Israel act patient’s rights act, 1996 under chapter 7 responsibility for the observance of patients’ rights and responsibility for patients’ medical facility shall designate a person to be responsible for the observance of patients’ rights. Scotland the Patient Rights Act 2011 Under Patient Rights The first section of the Act gives all patients the right that the health care. As per U.S. patients’ bill of rights those receiving medical care will form a non-binding declaration. Typically a patient’s bill of rights guarantees patients information, fair treatment, and autonomy over medical decisions, among other rights. There is similar law in South Australia relating to the rights of patients receiving health care from hospitals, doctors and other health care services found in both  legislation and in the common law which contained the Consent to Medical Treatment and Palliative Care Act 1995 (SA).

Indian Scenario: Protection of patients rights: Indian constitution under Art.21 also echoes the same it says,”No person shall be deprived of his life or personal liberty except according to procedure established by law”. ⁴ CESC Ltd. vs. Subash Chandra Bose. ⁵ Article 38 of Indian Constitution The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. Article 39(e) related with workers to protect their health. Article 41 imposed duty on State to public assistance basically for those who are sick and disable. Article 42 makes provision to protect the health of infant and mother by maternity benefit. Article 47 Duty of the State to raise the level of nutrition and the standard of living and to improve public health The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall Endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors.⁶ Health is a subject closer to everybody’s heart which improves ones health family ones which is a universal aspiration.  With the increasing privatization of the health care services in the country, the state is slowly abdicating its responsibility to provide health care to the people.  Approx 25% Medical profession contributes to the healthcare and 75% approx input in the various sectors like the pharmaceutical industry, hospitals, blood banks etc. which is mostly managed on a commercial basis and therefore patient as a consumer must have certain rights.  Patient’s rights as a consumer are more important than the rights of a general consumer because patient usually has very little choice in the treatment which emanate from human rights, constitutional rights, civil rights, consumer rights, codes of ethics of medical and nursing profession. The Indian Constitution bestows certain rights on the citizens in which Right to life, Right to a healthy life is an integral part of the Right to life. WHO’s describes health which includes physical, mental, social, environmental and spiritual aspects of health.⁷

In India there is very little perception about the rights of the patients even amongst the educated persons and violation of human rights is routine occurrence.  However the situation can be changed if every citizen takes certain precautions while undergoing treatment or while taking drugs/vaccines.

• In case of surgical treatment or invasive investigations and procedures one should make sure and understood the nature of the operation know about the details of the surgery as well as the details like the expected time of post-operative recovery and  expenses likely to be incurred for the surgery, the risks involved  in any non-surgical treatment for your ailment.
• Please make sure the details are understood by you before you sign the consent form which should be in your mother tongue or the language known to you.
• At the time of discharge of patient, please make sure that you have been given copies of all the relevant records, received the bills for all the payments made by you.
• Second opinion should be asked by the Physician if necessary for the treatment.
• Please make sure that the doctor has given you all the instructions for the medicines prescribed and relevant information given to you.
• In case of invasive/costly investigations, patients have the right to know of the alternatives as well as the necessity of the investigations.
• As a patient, right to take second opinion and/or change the doctor which should be exercised very judiciously and cautiously.
• If you have any complaints about the treatment/investigations/drugs etc., first approach the concerned doctor/hospital, if your complaint remains unresolved, then please writes down your grievance giving all the relevant details in a sequential format before taking any legal action.
• As a patient you have to expect due care to keep medical records confidential.  If the details are to be used in a medical conference, please make sure that your consent has been obtained by the doctor/hospital and in case of HIV positive patients, the details can only be disclosed with the patient’s permission.⁸

Medical Rights of the Patient:⁹

• Right to considerate and respectful care.
• Right to information on diagnosis, treatment and medicines.
• Right to obtain all the relevant information about the professionals involved in the patient care.
• Right to expect that all the communications and records pertaining to his/her case be treated as confidential
• Right to every consideration of his/her privacy concerning his/her medical care program me.
• Right to expect prompt treatment in an emergency
• Right to refuse to participate in human experimentation, research, project affecting his/her care or treatment.
• Right to get copies of medical records
• Right to know what hospital rules and regulations apply to him/her as a patient and the facilities obtainable to the patient.
• Right to get details of the bill.
• Right to seek second opinion about his/her disease, treatment.

Medical Councils : punish the councils and empowered/ cancel the registration either temporarily or permanently.

Consumer Courts: All the complaints should be redressed to the nearest consumer courts along with the Forum for Medical Ethics (FME) has formed an expert panel to help the consumers.  It must also be remembered that a fine of Rs 10,000/- can be imposed on the complainant under the Consumer Protection Act if the complaint is found to be vexatious/false.  Though the Consumer Protection Act has time limit of 120 days for disposal of cases, in reality, the cases take anywhere between 2 to 3 years for disposal.

Civil Courts : Proper redressal should be addressed at various civil courts.

Criminal Courts: The redressal of the complaints under criminal law should be judged at various district courts of concern area.

National accreditation Board for Hospitals and Healthcare Provider (NABH) Guidelines¹⁰

• The organization protects patients and family rights and informs them about their responsibilities during care.
• Patient and family rights support individual beliefs, values and involve the patient and family in decision – making processes.
• The patient and / or family members are educated to make informed decisions and are involved in the care planning and delivery process.
• A documented procedure for obtaining patient and / or family’s consent exists for informed decision making about their care.
• Patient and families have a right to information and education about their healthcare needs.
• Orgnisation has a complaint redressal procedure.

Conclusion : In India hospital provides would need to be reeducated and due surveillance done to ensure as per the proper guidelines about the quality of treatment for ensuring patient dignity and well-being.

By:-Chirag Sharadkumar Jani , MBA.,M.com., LL.M. , Ph. D. (PURSUING), Ph.D. RESEARCH SCHOLAR, DEPARTMENT OF LAW, HEMCHANDRACHARYA   NORTH  GUJARAT  UNIVERSITY, PATAN.

 

References :

1. Kumar Avanish “Human Right to Health” satyam law pub. 2007 at 171
2.  Sheeraj Latif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-34, at 30.
3. AIR 1992 SC 573,585.
4. (1996)  4 SCC 37
5. Kumar Avanish, “Human Right to Health”, satyam law international 2007 at 21
6. Datye V, Kielmann K, Sheikh K Deshmukh D, Deshpande S, Porter J, Rangan S. Private practitioners’ communications with patients around HIV testing in Pune, India. Health Policy Plan, 2006 Sep;21(5):343-52
7. Medical Council of India[Internet]. New Delhi: MCI; c2010. Code of Ethics Regulations, 2002.2002 Mar 11[cited 2012 Sep 29]; [about 10 screens]. Available from: http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx
8. http://www.nabh.co/

10. The Universal Declaration of Human Rights [Internet]. Geneva: United Nations Organisation.1948 Dec 10[cited 2012 Sep 25]. Available from: http://www.un.org/en/documents/udhr/
11. Patients’ Rights [Internet], Genomic Resource Center: World Health Organization. [date unknown] [cited 2012 Sep 25] Available from: http://www.who.int/genomics/public/patientrights/en/
12. Emanuel EJ, Emanuel LL. Four models of the physician-patient relationship. J Amer Med Assoc, 1992;267(16):2221-6.
13. Charles C, Gafni A, Whelan T. Decision-making in the physician-patient encounter: Revisiting the shared treatment decision-making model. Soc Sci Med, 1999; 49(5):651-61.
14. Falkum E, Forde, R. Paternalism, patient autonomy, and moral deliberation in the physician& minus;patient relationship: Attitudes among Norwegian physicians. Soc Sci Med, 2001; 52 (2):239-48.
15. Vaisman A. Comparing physician-patient relationship models. Univ Toronto Med J. 2008; 85(3):139-45.
16. us [Internet].[place unknown]: Civic impulse LLC;[date unknown]. HR 526 (107th) Bipartisan Patient Protection Act of 2001; 2001Feb 8[cited 2012 Sep 29][about 4 screens]. Available from: http://www.govtrack.us/congress/bills/107/hr526
17. AAPS, Association of American Physicians and Surgeons, A voice for private physicians since 1943 [Internet]. Tucson (Arizona): AAPS; c2011. Patient Bill of Rights; [date unknown] [cited 2012 Sep 29]; [about 1 screen]. Available from: http://www.aapsonline.org/index.php/patient_bill_of_rights/
18. Medical Council of India[Internet]. New Delhi: MCI; c2010. Code of Ethics Regulations, 2002.2002 Mar 11[cited 2012 Sep 29]; [about 10 screens]. Available from: http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx
19. Consumer Guidance Society of India [Internet]. Know your rights. Mumbai: CGSI [date unknown] [cited 2012 Sep 29]. [about 10 screens]. Available from: http://www.cgsiindia.org/knowyourrights.html
20. Harding TW. Human rights law in the field of mental health: a critical review. Acta Psychiatr Scand.2000;101 (399):24-30
21. Datye V, Kielmann K, Sheikh K Deshmukh D, Deshpande S, Porter J, Rangan S. Private practitioners’ communications with patients around HIV testing in Pune, India. Health Policy Plan, 2006 Sep;21(5):343-52
22. Solomon S, Solomon SS, Ganesh AK. AIDS in India. Postgrad Med J. 2006;82:545-7
23. Fochsen G, Deshpande K, Thorson A. Power imbalance and consumerism in the doctor-patient relationship: health care providers’ experiences of patient encounters in a rural district in India. Qual Health Res. 2006;16 (9): 1236-51
24. De Costa A, Johansson E, Diwan VK. Barriers of mistrust: public and private health sectors’ perceptions of each other in Madhya Pradesh, India. Qual Health Res. 2008; 18(6):756-66.
25. Shah K, Garg S, Patient advocacy groups: Need and opportunity in India.Perspect Clin Res. 2011;2(1):4-7.
26. Manne SL. Prostate cancer support and advocacy groups: Their role for patients and family members.Semin Urol Oncol,2002 Feb;20(1):45-54.
27. Thomas BE, Rehman F, Suryanarayanan D, Josephine K, Dilip M, Dorairaj VS, Swaminathan S. How stigmatizing is Stigma in the life of people living with HIV: A study on HIV positive individuals from Chennai, South India. AIDS Care, 2005 Oct; 17(7):795-801
28. Bhujang PM. Human Rights in Mental Health. Paper presented at the 58th Annual Conference of the Indian Psychiatric Society, 2006 Jan 5-8; Mumbai.
29. High level expert group. High Level Expert Group Report on Universal Health Coverage for India [Internet], New Delhi: Planning Commission of India; 2011 Nov [cited 2012 Sep 28]. 343p. Available from: http://planningcommission.nic.in/reports/genrep/rep_uhc0812.pdf

NHRC preparing draft legislation on patients’ rights. [Internet] The Indian Express (online ed). 2012 Jan 21[cited 2012 Sep 29]. Available from: http://www.indianexpress.com/news/nhrc-preparing-draft-legislation-on-patients-rights/902272/