Non-availability of Ventilators and ICU is not a valid reason to deny admission to the Hospital [COVID-19]: Bombay High Court

 1 smpl4.20.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SUO MOTU PUBLIC INTEREST LITIGATION NO. 4 OF 2020 COURT ON ITS MOTION UNION OF INDIA THROUGH ITS SECRETARY AND OTHERS Office Notes Office Memoranda of Coram appearances Court s Orders or directions and Registrar s order Court s or Judge s Order Shri S.P.Bhandarkar Advocate as Amicus Curiae. Shri U. M. Aurangabadkar A.S.G.I. for respondent no.1 Shri D.P.Thakare AGP for Respondent Nos. 2 5 6 8 and 9 Shri S.M.Puranik Advocate for Respondent NO.4 CORAM : R. K. DESHPANDE AND SMT. PUSHPA V. GANDEDIWALA JJ DATED : 10.09.2020 Hearing was conducted through video conferencing and the learned counsel agreed that the audio and video quality was proper Heard Shri Bhandarkar Amicus Curiae in this Petition Shri Puranik learned counsel for Nagpur Municipal Corporation and Shri Thakare the learned Assistant Government Pleader. We have also heard Shri Radhakrishnan the Municipal Commissioner Shri Ravindra Thakre the Collector Nagpur Shri Sudhir Gupta In charge Dean Government Medical College and Hospital and Shri Kevliya the Dean Indira Gandhi Government Medical College and Hospital. We also got the benefit of hearing Dr. Archana Kothari President Indian Medical Association and Dr. Anup Marar Director of Orange City Hospital and Convenor of WWW.LIVELAW.IN 2 smpl4.20.odt The main issue which requires our immediate attention is of making the ventilators and oxygenated beds available to the patients of moderate and severe conditions so as to reduce the death rate. The people are required to travel from one Hospital to another with serious patients and for want of accommodation the newspaper report shows that the deaths are occurring. We must note with regret that for want of medical aid the people are falling pray to Corona Virus. We therefore thought that without going into the legal niceties an immediate arrangement can be worked out to reduce the death rate. Hence we try to work out the solution It is not the case of the parties including the Municipal Commissioner Nagpur the Collector Nagpur the Deans of GMCH and IGGMC Nagpur that the infrastructural facilities namely ICU Ventilator beds or oxygenated beds are not available of course this cannot be the reason for the State and it is the duty of the State to make all such infrastructural and medical facilities available to save the life of people who are affected or likely to be affected by Corona Virus The problem of non availability of the medical and para medical staff can also not be a problem to deny the admission in the Hospital to the patients. Even private Doctors are under obligation to provide the treatment. The preservation of human life is of paramount importance. Once the life is lost it cannot be restored. Every Doctor whether he WWW.LIVELAW.IN 3 smpl4.20.odt is in Government or Semi Government Hospitals or private professional is under obligation to extend his services with due expertise for protecting the life. Even private Doctors cannot refuse to render their services during pandemic in all such Hospitals where they are called or their services are needed Similar is the position in respect of para medical staff. It is the obligation on the State to secure adequate para medical staff from all such sources as are available and non availability of it cannot be countenance Fortunately Dr. Archana Kothari the President of Indian Medical Association and Dr. Anup Marar the Director of Orange City Hospital and Convenor of Hospitals Association have joined us in this matter on their own showing willingness to tackle the problem. They have however expressed the difficulties of the Doctors who are 65 years of age and above or are suffering from co morbidities to take responsibility of providing treatment by personally attending the patients in various Hospitals or Dedicated Covid Heath CentresSCC 286 as under Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is therefore duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life. No law or State action can intervene to avoid delay the discharge of the paramount obligation cast upon members of the medical profession The obligation being total absolute and paramount laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must therefore give way. “14. It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life. It could not be disputed that inspite of development economical political and cultural still citizens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospitalpublic authority or a private persons or a medical professional doing only private practice he is always called upon to rush to help such an injured persons and to do all that is within his power to save life. So far as this duty of a medical professional is WWW.LIVELAW.IN 8 smpl4.20.odt concerned its duty coupled with human instinct it needs no decision nor any code of ethics nor any rule or law 15. Medical profession is a very respectable profession Doctor is looked upon by common man as the only hope when a person is hanging between life and death but they avoid their duty to help a person when he is facing death when they know that it is a medico legal case. To know the response of the medical profession the Medical Council of India and also the All India Medical Association were put to notice and were requested to put up their cases. We do not want a situation to occur where the patients are required to travel from one Hospital to another to secure the position in ICU ventilated beds or oxygenated beds or due to non availability of the services of medical and para medical staff. If any patient requires medical assistance and approaches any Hospital or DCHC where such facility is not available for any reason whatsoever such Hospitals or DCHCs should immediately make necessary enquiry and help the patient to reach to the proper destination. It shall be the duty of the Municipal Commissioner and the Task Force to see that all the Hospitals and DCHCs should provide the information and contact numbers of the Hospitals where such facilities can be easily made available and the patients are not required to travel from pillar to post. We have seen the affidavit of the Municipal Commissioner and we find that such responsibility is shouldered by the Municipal Commissioner. We also expect the Task Force to spring in action to supervise the infrastructural facilities and man power in the Hospitals and WWW.LIVELAW.IN 9 smpl4.20.odt We make it clear that there should be no prohibition for the patients of COVID 19 to have consultation with the Doctor of their choice who can visit and examine the patient anywhere in any Hospital or DCHC and advice investigation and medication. This will reduce the responsibilities of others. Put up this matter on 15.09.2020 at 10.30 a.m. for further direction along with W.P.No. 80520 The order be communicated to the counsel appearing for the parties either on the email address or on WhatsApp or by such other mode as is permissible in law JUDGE JUDGE

Summary:  The state is duty-bound to make all infrastructural and medical facilities available to save the life of people affected or likely to be affected by Coronavirus held by Justice R.K. Deshpande and Justice Smt. Pushpa V. Gandediwala in the case of Court in its own Motion Vs. Union of India through its secretary and Ors., (R) [Suo Moto Public Interest Litigation No.4 of 2020]. It was observed by the Hon’ble Court that the main issue which requires our immediate attention was of making the ventilators and oxygenated beds available to the patients of moderate and severe conditions so as to reduce the death rate. The people were required to travel from one Hospital to another with serious patients and for want of accommodation, the newspaper report showed that the deaths were occurring. They must note with regret that for want of medical aid, the people were falling pray to Corona Virus. So, therefore, thought that without going into the legal niceties, an immediate arrangement could be worked out to reduce the death rate. Hence, they tried to work out the solution.  The Hon’ble Court while examining the issue of non-availability of beds observed that “The problem of non-availability of the medical and para-medical staff can also not be a problem to deny the admission in the hospital to the patients. Even private Doctors are under obligation to provide the treatment. The preservation of human life is of paramount importance. Once life is lost, it cannot be restored. Every Doctor whether he is in Government or Semi-Government Hospitals or private professional is under obligation to extend his services with due expertise for protecting life. Even private Doctors cannot refuse to render their services during pandemics in all such Hospitals where they are called or their services are needed. Similar is the position in respect of para-medical staff. It is the obligation on the State to secure adequate para-medical staff from all such sources as are available and non-availability of it cannot be countenance.” The Hon’ble Court quoted the portion of the observations of the Apex Court in paras 8, 14 and 15 of the decision in the case of Pt. Parmanand Katara versus Union of India [1989 (4) SCC 286]. Article 21 of the Constitution casts the obligation on the State to preserve life. It was also pronounced by Hon’ble Court that the judges and the lawyers have made themselves available 24×7 to serve the causes in the pandemic situations and there would be nothing wrong to expect the medical and paramedical staff to be available 24×7 in this pandemic situation.  It was held by the Hon’ble Court that “We do not want a situation to occur where the patients are required to travel from one Hospital to another to secure the position in ICU, ventilated beds or oxygenated beds or due to non-availability of the services of medical and para-medical staff. If any patient requires medical assistance and approaches any Hospital or DCHC where such facility is not available for any reason whatsoever, such Hospitals or DCHCs should immediately make a necessary enquiry and help the patient to reach the proper destination. It shall be the duty of the Municipal Commissioner and the Task Force to see that all the Hospitals and DCHCs should provide the information and contact numbers of the Hospitals where such facilities can be easily made available and the patients are not required to travel from pillar to post. We have seen the affidavit of the Municipal Commissioner and we find that such responsibility is shouldered by the Municipal Commissioner. We also expect the Task Force to spring in action to supervise the infrastructural facilities and manpower in the Hospitals and DCHCs.” Finally, the decision came and they made it clear that there should be no prohibition for the patients of COVID-19 to had a consultation with the Doctor of their choice who could visit and examine the patient anywhere in any Hospital or DCHC and advised investigation and medication. This will reduce the responsibilities of others. Click here to read the judgement