Facts of the Case
In the present case, various writ petitions were filed by the Petitioners related to issues of oxygen cylinder pooling; price control of oxygen cylinders; bed allocation; and conducting testings only via the RT-PCR test; update on relevant information by the hospitals and nursing homes; issues regarding ambulance and hearse/mortuary services for Covid-19 patients/deceased. The Learned Amicus on the issue of oxygen supply and, particularly, on the creation of the oxygen cylinder pool had supplied some details to the Court. Further, it was pointed out that for a person to procure an oxygen cylinder, there were some requirements, namely, a. The patient has to be from South District; b. Aadhar card is required as proof of address; c. The patient should have a COVID positive report; d. The doctor’s prescription and CT severity need to be attached; e. Allotment will be made on a first-come, first-serve basis; f. A B – type/D – type empty cylinder is to be given instead of a filled cylinder of the same type. But it was stated that the insistence on a COVID – positive report for the supply of oxygen cylinders to individuals may deprive some needy patients of the same, who do not possess a COVID – positive report.
The other aspect raised by the Learned Amicus was about the control of the price of oxygen cylinders. Further, it was informed that as far as oxygen cylinders were concerned, the pricing was not being scrupulously followed. Besides this, the next issue flagged by the Learned Amicus was the availability of, and the charges levied by Ambulances and Hearse/ Mortuary Services for Covid-19 patients, who unfortunately pas away. It was apparent that several issues were being faced by the public with Ambulance and Hearse/Mortuary services. The most prominent of these was the non-availability of a consolidated and authenticated information source. While there was a dedicated GNCTD helpline number, namely 102, for ambulance services, but the same was insufficient to cater to the current need for the ambulance(s) for Covid-19 patients, both with and without oxygen. Additionally, no such helpline number exists for hearse/mortuary services. The Learned Amicus had included a note on issues qua insurance policy coverage for Covid-He raised several issues which were arising about the insurance claims and which may arise over time. Lastly, Mr Rao has also raised the issue about the non- popularity of “Feluda” and “Ray” testing as compared to the RT-PCR testing for COVID-19.
Petitioner’s Arguments
Firstly, the Petitioner took up the issues of oxygen cylinder pooling. They struck on the requirement of a COVID positive report for the allocation of cylinders as the same would deprive the needy. And thereby, suggested that the GNCTD be directed to: a. Immediately operationalize the portal, and till the same was done, create dedicated WhatsApp numbers for the districts/sub-divisions, and widely publicize the same forthwith. b. Permit supply to patients lacking a COVID – positive report based on a doctor’s prescription and other accompanying documents/test results. c. Reconsider urgently the requirement of only Aadhar and substituting it with any other accepted document viz. Driving License etc. d. Issue a clarification that instead of a blanket limitation to persons residing in the same district, ordinarily preference would be given to such persons. However, in emergent cases, others could also avail of the said facility.
Further, the Petitioner raised the issue of the price of the cylinders not being scrupulously followed. Thereby, recommended to a. Direct the UOI and NPPA to take steps to enforce the price caps b. Direct GNCTD to ensure that the pricing decided by NPA adheres to c. Direct the UOI and NPPA to monitor and review the situation and pass additional necessary orders, as warranted.
Mr Rao further submitted that even though the charges for Ambulances have been fixed, charges for Hearse/ Mortuary Services have not been fixed by the GNCTD. So a direction was to be made to the GNCTD to fix the rates for Hearse/ Mortuary Services to be provided for the deceased Covid-19 patients.
The other aspect raised by the learned Amicus is that the Ambulances/ Hearse Services were not being entertained at Petrol Pumps due to fear of Covid-19 contamination. Similarly, in respect of the Ambulances fitted with Oxygen supply, the Oxygen vendors are wary of entertaining such service providers.
Further, Mr Rao while raising the issue of testing, submitted that apart from the RT-PCR Test, which was considered as the gold standard, and the Rapid Antigen Test (RAT), indigenous tests namely “Feluda” and “Ray” was also available, which were approved by the ICMR. These were cheaper tests, and the results are also available faster when compared to the RT-PCR Test. Mr Rao submitted that as per the statement made by the concerned Minister, the sensitivity and specificity of the “Feluda” Test were more or less the same as the RT-PCR Test. He submitted that the “Ray” Test was only an improved version of the “Feluda” Test. But the same has not gained popularity just like the RT-PCR test.
Respondent’s Arguments
Firstly considering the issue of oxygen cylinder pooling, Mr Mehra submitted that the suggestion that the distribution through the office of the District Magistrate is opened up for all the residents, irrespective of the district in which they reside, may not be implemented right away, since in all the 11 districts the same mechanism are being operationalized and, therefore, to evolve and maintain a proper system, and avoid overcrowding, the residents of the different districts should approach the concerned provider for procuring a cylinder within the district. Further, he submitted that depending upon the experience gained after the system is implemented, reallocation of the number of cylinders district-wise could be undertaken to deal with greater demand in some areas versus less demand in others.
Further, Mr Mehra submitted that last year, when the Pandemic was much milder, the Central Government had made available 4112 beds in its hospitals and facilities in Delhi. And also, a statement of the Director, Ministry of Health and Family Welfare that the Central Government was endeavouring to make more beds available in the NCT of Delhi was referred to.
Court’s Observation
The Court, in this case, observed the order dated 20.04.2021, and in particular to paragraphs 7,8, and 9 thereof. The Court further stated that they were informed that, on 19.04.2021, in the named Central Government Hospitals, there were 1432 COVID beds. That apart, 250 beds were to be made available by DRDO, 250 beds by LHMC, and 36 beds in Safdarjung Hospital as per plan. That apart, in other hospitals and facilities, 2105 beds were claimed to have been made available by the Central Government in the NCT of Delhi. Thus, the Central Government claimed to have made available, in all, 4091 COVID beds for COVID patients in Delhi. Court had required that the breakup of the 4091 beds be provided along with details of ICU/ Non-ICU beds, and beds with/ without oxygen, and with/ without a ventilator.
Furthermore, the Court observed that because the number of COVID patients, who were now needing hospitals if, for greater than the numbers which were turning up last year – even during the peak of the pandemic, the Central Government should urgently look to allocate more beds among their hospitals for COVID patients. And thereby directed the Central Government to look into the aspect of bed allocation for COVID patients keeping in view the prevailing circumstances, and report in this regard on the next date of hearing i.e., 22.04.2021.
On 22.04.2021, as per the compliance report, 4091 beds were allocated in Central Government hospitals for COVID patients, however, the same included 1200 beds at Railways, Shakur Basti and Anand Vihar, which could not be considered as full-fledged hospital beds. After noticing that 340 COVID beds had been made available at the Army Base Hospital in Delhi Cantonment, and the statement of the Central Government that it was intending to add further beds for COVID patients, Court expressed that the Central Government would look into the requirement of COVID beds, and work to enhance the availability of such beds in Central Government Hospitals and facilities.
Further, for the oxygen cylinders pooling the Court considered Mr Rao submission that after working on the Format prepared and shared by Mr Alok Aggarwal, Advocate, he has forwarded to the GNCTD, the Performa which the different players in the supply chain should fill up online, to maintain transparency, and coordination in the matter of supply of LMO for the NCT of Delhi.
Further, Mr Rao submitted that the hospitals and the Nodal Officers have not been updating the data on the portal of the GNCTD concerning the availability of beds. He stated that the hospitals and nursing homes he had spoken to, stated that it was too much work for them to perform. But this submission can’t be appreciated for the reason that in every big or small hospital and nursing home, there is bound to be a Management Wing where records concerning the occupancy and availability of beds are maintained on a real-time basis. In our view, it is not much to expect from the hospitals, and nursing homes, to update information about the same every couple of hours.
Court’s Decision
Considering the issue of the price of the cylinders, the Court directed that the GNCTD should look into the aforesaid aspect so that the price at which the cylinders are to be supplied to the consumer is fixed/ capped, after taking into account the price of the gas as the oxygen cylinders and; the transportation costs/ commission and service charges which may reasonably be borne for delivering gas after conversion from liquid medical oxygen. The GNCTD should hold a meeting with all the stakeholders to resolve this issue at the earliest.
Considering the issue of non- permitting of the ambulances in the premises of the petrol -pumps and the service- providers, the Court considered that the State should sanitize the Petrol Pumps through their local police and, wherever necessary, assistance may be provided. And the Status Report of the same should be filed by 20.05.2021.
Further, while considering the issue of the insurance claims, the Court directed that the said issue be circulated along with a copy of this order to the Insurance Regulatory and Development Authority of India (IRDA). The IRDA should look at the aspects raised by the Learned Amicus, and the IRDA should place before this Court their response within two weeks.
Further, while noticing the non- popularity of the Feluda and ray tests like the RT-PCR test the Court directed Mr Anurag Ahluwalia who appeared for the ICMR to report that as to why the “Feluda” and “Ray” Tests have not gained popularity just like the RT-PCR Test. In this report, They should also disclose the bottlenecks, if any, in adopting the said tests along with the RT- PCR Test as the gold standard.
Further, the hospitals, and nursing homes, were directed to update information about the availability of beds and other necessary information every couple of hours. And the Non-compliance with this direction shall be viewed strictly.
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