The Gujarat High Court permitted private doctors to run COVID-19 tests on certain patients without approval. However, this informing should happen within 24 hours. Earlier, due to the lack of prior approval the emergency cases were delayed.
Brief Facts of the Case
The Gujarat Government had passed an order to prohibit private doctors from running COVID-19 tests. It also stated, that conduction of tests can be only on approval of concerned health officers.
Subsequently, the Ahmedabad Medical Association and Dr Malay Patel challenged the order. Thus, they filed the petition at Ahmedabad bench.
Contention of the Petitioner
The counsel argued that the need for approval affected the treatment of patients—especially those with a different ailment. Furthermore, the normal functioning of the hospital includes emergency cases. These included the delivery of pregnant women, patients on dialysis and heart conditions.
Therefore, they instructed the doctors to treat patients only based on COVID -19 test. The test are critical precautionary measures. Hence, these were for the safety of the medical staff. In the case of private hospitals, the tests have to wait for the approval, from the Superintendent of the GMERS, Ahmedabad or the DHO. The approval takes two to four days, followed by an inevitable couple of days for the outcome of the tests.
Thus, the procedure for detecting COVID-19 takes five to six days to start the initial treatment. This may prove fatal during exigencies.
Contentions of the Respondent
The Advocate General quoted several guidelines that the Indian Council for Medical Research issued. In addition to that, the State Government had to follow the three-member committee report. The report listed the policy of testing a person for COVID-19. The list did make an exception for emergency and life-saving procedures. It included the following patients for mandatory tests:
a. Firstly, all the symptomatic patients with clinical suspicion of COVID19 by a treating consultant.
b. Every symptomatic health care worker should be tested on the recommendation of a consultant.
c. Preoperative testing for patients undergoing surgery or any other instrumentations can be done as per the discretion of a treating consultant.
d. Emergency and life-saving procedures may be carried out without waiting for COVID-19 testing in the best interest of patients.
e. Patients receiving cancer chemotherapy, radiotherapy and planned hemodialysis should undergo testing.
f. All the pregnant women admitted in the hospitals located in the containment area for delivery should be tested in the best interest of newborn.
Court’s Observations and Analysis
The Court examined the petitioner’s submissions along with the ICMR guidelines submitted by the Advocate General.
In addition to that, it referred to the Supreme Court Judgement in Navtej Singh Johar v. Union of India (2018) 10 SCC 1. The Apex Court iterated that the Court has the power to impose positive obligations. These obligations fall upon the State. Obligations to secure effective enjoyment of the right to health.
The Court impleads ICMR as one of the respondents in this litigation. It has questioned its testing policy and guidelines on private individuals and institutions. Further, the Court has asked for a reply from the State Government on the policy. It seeks a reply if the State Government can evolve its policy based on the guidance of ICMR.
Moreover, it has to be ascertained if pathological test/diagnosis is one of the facets of the right to health, as under Article 21.
Chief Justice Vikram Nath and Justice P. B. Pardiwala pronounced the order at the Ahmedabad bench of the Gujarat High Court. The Court has directed the government to exempt approval by health officers. This exemption was for an emergency case in a private hospital. Moreover, if it requires approval, it must be granted within 24 hours. The bench stated that core obligation under the right to health is non-negotiable.
It also asserted:
“Disease is a natural catastrophe that fells its victims unpredictably. The right to adequate health care flows from the sanctity of human life and the dignity that belongs to all persons. Health is a fundamental human right, which has as its prerequisites social justice and equality. It should be accessible to all.”
So, private doctors need not halt the treatment for government approval. This comes as a relief to the patients as well as medical staff in the private institutions.
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