The World Health Organization (WHO) has defined healthcare as, ‘A good health system delivers quality services to all people, when and where they need them. The exact configuration of services varies from country to country, but in all cases requires a robust financing mechanism; a well-trained and adequately paid workforce; reliable information on which to base decisions and policies; well maintained facilities and provision to deliver quality medicines and technologies.’
‘Right to live’
Part III of our constitution has stated certain fundamental rights for the citizens of India. In particular we will be looking at Article 21.
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So what is Article 21?
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Article 21 confers on everybody the elemental right to life and personal liberty. It is the foremost basic of human rights, and acknowledges the sanctity of human life. This article provides right to life and personal liberty except on the ground of procedure established by law. Over the years, this Article has undergone a sea change and has; become the most important and fundamental right. Now, the Article stands not simply for the right to Life and personal liberty, but conjointly the right to dignity and all different attributes of human temperament those are essential for the full development of a person.
A simple understanding of this right would bring us to a conclusion that health is a necessary aspect of a good healthy and prosperous life. Therefore healthcare should already be a part of Right to live, which if were true would make the whole purpose of this project useless!
However here’s where we come across a loophole...Article 21 of the Indian Constitution guarantees the right to life and personal liberty. Here, the expression ‘life’ denotes the life with dignity and not only the mere survival with having a wider explanation to have everything to live a life of a better standard. Article 21 puts a limit on the power of the State given under Article 246, read with the legislative lists. Thus, Article 21 does not recognize the Right to Life and Personal Liberty as an absolute right but limits the scope of the right itself.
‘Does this mean that the Constitution doesn’t give Healthcare any importance?’
NO. Though the right to health has not been expressly identified in the Indian Constitution under Article 21 still the Supreme Court of India has declared the right to health as a constitutional right taking references with the International Law. Constitution of India is the supreme law of the land which advocates every other law of the country. Furthermore, it is not only a Fundamental right but even the Directive Principles of State Policy do have certain provisions for a better standard of health hence it is the duty of the state to implement the directives to give the citizens more benefits on the right to health. Article 21 of the Indian Constitution shouldn't be interpreted alone it ought to be combined with additional articles such as Articles 38, 42, and 47 to have a clear understanding of the character of the responsibility of the State to ensure better health conditions within the scope of the right to health.
‘So, should healthcare be a fundamental right?’
A report published in The Lancet states that, ‘Some 2.4 million Indians die of treatable conditions every year.’
Poor care quality leads to more deaths than insufficient access to healthcare–1.6 million Indians died due to poor quality of care in 2016, nearly twice as many as due to non-utilization of healthcare services (838,000 persons).
Almost 122 Indians per 100,000 die due to poor quality of care each year, the study said, showing up India’s death rate due to poor care quality as worse than that of Brazil (74), Russia (91), China (46), and South Africa (93) and even its neighbors Pakistan (119), Nepal (93), Bangladesh (57) and Sri Lanka (51).
A calculable 8.6 million deaths in low- and middle-income countries every year are due to conditions treatable by healthcare, of which 5 million result from poor quality of care and 3.6 million from insufficient access to care, according to The Lancet Global Health Commission on High Quality Health Systems.
After observing such shocking statistics the answer seems very obvious ‘YES HEALTHCARE SHOULD BE A FUNDAMENTAL RIGHT’
But in reality if the answer was that simple it would have been implemented long ago...
‘More than a million of 8.6 million preventable deaths were from neonatal conditions and tuberculosis in people who accessed the health system but received poor quality of care in 2016. An estimated 81% of cardiovascular deaths, 81% of vaccine-preventable diseases, 61% of neonatal conditions and half of maternal, road injury, tuberculosis, HIV and other infectious deaths were due to poor quality of care.’
Just access to health care isn't enough and good quality care is required for better outcomes. Citing the example of India’s Janani Suraksha Yojana (Maternal Safety Scheme). Started in 2005, the programme offers cash incentives to encourage women to give birth in health facilities. It has “increased facility delivery however failed to measurably scale back maternal or newborn mortality”, report notes. While it led to 50 million births in health facilities, many of them occurred in primary care centres that did not have sufficiently skilled staff to address maternal and newborn complications.
High-quality care involves thorough assessment, detection of asymptomatic and co-existing conditions, accurate diagnosis, appropriate and timely treatment, referral when needed for hospital care and surgery, and the ability to follow the patient and modify the treatment course as required.
‘Can health & healthcare be used synonymously?’
Health and health care need to be distinguished from each other for no better reason than that the former is often incorrectly seen as a direct function of the latter. Heath is clearly not the mere absence of illness. Good Health confers on a person or group’s freedom from illness - and the ability to realize one's potential. Health is thus best understood as the indispensable basis for outlining an individual's sense of well being. The health of populations is a distinct key issue in public policy discourse in each mature society usually determining the deployment of huge society. They include its cultural understanding of ill health and well-being, extent of socio-economic disparities, reach of health services and quality and costs of care and current bio-medical understanding about health and illness.
Health care covers not just medical treatment but additionally all aspects pro preventive care too. Nor can it be restricted to care rendered by or financed out of public expenditure- inside the govt sector alone however should embody incentives and disincentives for self care and care paid for by private citizens overcome over health problems. Where, as in India, private out-of-pocket expenditure dominates the cost financing health care, the effects are bound to be regressive.
‘How much does the government spend on Healthcare?’
The amount India spends on public health per capita each year is Rs 1,112, less than the price of one consultation at the country’s top private hospitals–or roughly the cost of a pizza at many hotels. That involves Rs 93 per month or Rs 3 per day. At 1.02 % of its gross domestic product (GDP)–a figure that remained nearly unchanged in 9 years since 2009–India’s public health expenditure is amongst the lowest in the world, lower than most low-income countries which spend 1.4 % of their GDP on health care, consistent with the National Health Profile, 2018, released by union minister for health and family welfare, JP Nadda, on 19 June. India spends 1.02 % of gross domestic product (GDP) on public healthcare, compared to 1.4 percent by low-income countries, the new data reveals. The recent Human Development Report published by the United Nations Development Programme has yet again highlighted India’s poor development outcomes compared to its peers. India’s abysmal ranking in development outcomes is primarily owing to its skew disbursement priorities. To put it simply, 16% of total central government expenditure is locked away in subsidies whereas only 5.3% goes to education, health and water and sanitation put together. The subsidy spending is extremely regressive, benefiting the wealthy far more than the poor.
The statistics above give a very clear image of the current state of healthcare in India . To sum up the above paragraphs; India’s expenditure on healthcare is embarrassingly low, schemes put out by the government fail to get effectively implemented . Subsidies offered by the Government aren’t reaching the targeted population.
Before diving into the reasons of poor healthcare, to be specific why aren’t these government policies working, we need to first look at the recent government policies made on healthcare.
Recent Government policies
The National Health Mission (NHM) was launched by the government of India in 2013 subsuming the National Rural Health Mission and National Urban Health Mission. It was further extended in March 2018, to continue until March 2020.
The main programmatic components include Health System Strengthening in rural and urban areas for - Reproductive-Maternal- Neonatal-Child and Adolescent Health (RMNCH+A), and Communicable and Non-Communicable Diseases. The NHM envisages achievement of universal access to equitable, affordable & quality health care services that are accountable and responsive to people's needs.
The National Health Mission seeks to ensure the achievement of the following indicators: -
- Reduce MMR to 1/1000 live births
- Reduce IMR to 25/1000 live births
- Reduce TFR to 2.1
- Prevention and reduction of anemia in women aged 15–49 years
- Prevent and reduce mortality & morbidity from communicable, non- communicable; injuries and emerging diseases
- Reduce household out-of-pocket expenditure on total health care expenditure
- Reduce annual incidence and mortality from Tuberculosis by half
And much more..
A few policies under the NHM are :
- Reproductive, Maternal, Newborn, Child and Adolescent Health (RMNCH+A) program:
- Rashtriya Bal Swasthya Karyakram (RBSK)
- The Rashtriya Kishor Swasthya Karyakram
- Janani Shishu Suraksha Karyakaram
Apart from the above mentioned schemes the NHM has also launched various other policies.
The most recent policy the government has put out is the National Healthcare policy (2017)
The main objective of the National Health Policy 2017 is to achieve the highest possible level of good health and well-being, through a preventive and promotive health care orientation in all developmental policies, and to achieve universal access to good quality health care services without anyone having to face financial hardship as a consequence.
It seeks to strengthen the health, surveillance system and establish registries for diseases of public health importance, by 2020. It aims at achieving universal health coverage and delivering quality health care services to all at affordable cost. This Policy looks at problems and solutions holistically with private sector as strategic partners. It seeks to promote quality of care; its focus is on emerging diseases and investment in promotive and preventive healthcare. The policy is patient centric and quality driven envisages strategic purchase of secondary and tertiary care services as a short term measure to supplement and fill critical gaps in the health system.
‘The government has provided us with so many policies, but why is our healthcare system still lacking?’
1) Infrastructure of Government Hospitals:
Most of the hospitals/dispensaries particularly in villages do not have even basic infrastructure.
2) Govt. Subsidies
Excessive price controls that do not allow for a fair competition to the producer have resulted in lowered investment in research and development, reduced quality and lower production, leading to unethical trade practices and choice to the consumers. They have created companies focused on competing almost entirely on cost, with little interest in quality and innovation. Indeed, this reality is what led to the gradual shortening of the list of drugs under price controls from the 1970s to 2010s. After all, of what use are lower prices to patients if the products are inferior or simply unavailable?
Looking at the recent example of price controls imposed on coronary stents for heart disorders, at least three manufacturers of high-quality stents with demonstrable value to patients have since requested to exit the market. These companies are feeling neglected and cornered. Reports suggest that, in spite of price cuts, the stent placement procedure costs continue as before, with hospitals merely assigning the costs elsewhere in the package offered to the patient. If this isn’t a failure to achieve the desired outcome, what is? At the end, who suffers? It’s the patients.
3) Lack of synergy between research institutes and govt.
Although there's an excessiveness of health analysis establishments in Asian country, there is little synergy between them. One major cause for concern is restricted use of the health management data system as a proactive management tool in government health programmes. There is additionally inadequate linkage between research institutions and also the implementation wing.
4) Lack of awareness
Consumers’ personal choices and behaviors are significant determinants of their overall health, and those who fail to take personal responsibility for their health can cost the system billions of dollars each year
5). Stark divergence in healthcare outcomes within the country:
Healthcare being a state subject, the healthcare outcomes have remained divergent supported by the standard of the state administration. While North India is the most populated part of India, it has one of the most underserved healthcare infrastructures in the country. Consequently, while hundreds of children died in hospitals in Uttar Pradesh last year, Kerala managed to contain the deadly Nipah virus outbreak within weeks.
Another recent problem that has risen is the overwhelming influx of patients in compared to the underwhelming amount of doctors.
‘A Doctor’s Perspective’
A survey by the Indian Medical Association (IMA) in 2015 revealed that nearly 75% of doctors in India have confronted some type of violence and threat at some point in their careers. Exemplary punishment of culprits of violence should be a component of the central law. Suitable amendments must be brought in IPC and CrPC
The main reasons attributed to violence against healthcare staff are:
- The absence of adequate economic investment in healthcare.
- Little and medium private health awareness foundations, which give a major portion of medicinal services administrations are confined and disorganized. Every one of these elements causes disappointment among people in general, and they take on their dissatisfaction onto specialists.
- The other factors attributed to violence against doctors are poor quality of emergency care, the poor mechanism for grievance redressal, poor emergency network among hospitals, poor communication skills of healthcare workers, high patient load, lack of proper training of healthcare staff, high work load and political obstruction in emergency clinic affairs.
‘What is the negative impact that could happen if Healthcare was made a Fundamental Right?’
1. Libertarian position:
This can be summed as follows: while health, in certain preventative aspects, may require a degree of engagement from the state, in a world cleansed, for the most part, of epidemics and the most dangerous communicable diseases, it is the individual who is responsible for her health. And if she falls sick, she must pay for it—and not just monetarily but also in a punitive sense—for having been irresponsible enough to fall ill (through neglect, etc.,) and impose a social cost on society. Consumers’ personal choices and behaviors are significant determinants of their overall health, and those who fail to take personal responsibility for their health can cost the system billions of dollars each year
2. Living Conditions:
The other set of arguments usually stated against creating health a right are the pragmatic ones, to do with the capacity of the state to deliver on such a promise—where is the money going to come from?, where are the hospitals?, where are the trained health workers?etc. Those who support health as a fundamental right counter the above criticisms by citing that it's not solely the individual who is to blame for her health but conjointly the circumstances in which she lives and works, and these are often not under her control.
For example, Delhi is the world’s most polluted city. In winter particularly, you can barely venture out in the morning smog without catching an infection. Isn’t the state responsible for controlling pollution? If health was a fundamental right, then the government would be compelled to think seriously about the pollution aspect or the environmental impact when, say, granting permissions for new industries or framing development policies.
3. A right to health care could cause people to overuse health care resources:
When people are given universal health care and aren't directly chargeable for the costs of medical services, they may utilize more health resources than necessary.
Conclusion
Law is an important public health tool that plays a critical role in protecting the health of the general public. Right health is central to all human rights and denial of health right would mean denial of all human rights. The framers of the constitution incorporated right to health in the Directive Principles of State Policy (DPSP) which enjoins the state to provide comprehensive, creative, Therefore, entitlement to healthcare must be ensured by developing specific statutes, programs and services..Health care at its essential core is widely recognized to be a public good. Its demand and supply cannot thus, be left to be regulated solely by the invisible had of the market. Nor can it be established on examination of utility maximising conduct alone.
This brings us to our main question, ‘Should healthcare be a fundamental right?’
After critically analyzing the state of healthcare in India, the law backing the concept of health and healthcare, the hitch in the healthcare of our country, and the disadvantages or negative impact of Healthcare being a Fundamental Right... it is safe to say both arguments ‘for and against’ have equally notable arguments. Hence there is no clear cut conclusion to this question due to its complexity in nature. The purpose of this project is not to give you the answer to the question..but to question and analyse the answers that are out there.
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