Right to health care for survivors of sexual assault: Public interest litigation
CEHAT filed an intervention petition in the Nagpur High Court on 9th Sept 2010 in a Public interest litigation (PIL) filed by Dr.Ranjana Pardhi and others against Union of India in 2009. The Lawyers Collective is representing CEHAT for this petition. The PIL by Ranjana Pardhi and others sought to streamline the medico legal response to sexual assault. As a response to this, the central and state governments submitted proforma for medical examination of sexual assault survivors. These proformas were archaic and not in accordance with the international standards or existing laws in the country. CEHAT made two key prayers through its intervention application - the first prayer demanded that the state government should stop the use of their archaic proforma with immediate effect and replace it with a gender sensitive proforma. The second prayer asked the state government to ensure the provision of immediate medical treatment along with psychosocial services at the hospital level.
The court appointed a committee to look in to the proformas and manual submitted by the petitioners as well as CEHAT (intervenors) and submit a proforma and manual to the court. However the committee set up comprised of only forensic doctors, these doctors don’t conduct sexual assault examinations at all. Therefore CEHAT’s legal counsel argued for expanding the committee and including doctors who were instrumental in implementing the comprehensive health care response in Mumbai hospitals. CEHAT also demanded that those involved in drafting such a proforma ought to visit the 3 hospitals where such a comprehensive model is being implemented. Visits were organised to the 3 sites and the committee was invited to interact with the hospital staff, with the hope that it would impress upon the committee the feasibility and positive impact of implementing gender sensitive protocols. In spite of such close engagement by CEHAT with the committee, the revised proformas submitted were not as per the standards set by the WHO. Unfortunately the petitioners (Ranjana Pardhi and others) did not register any objections to these proformas and therefore the court came to the conclusion that the proformas be circulated for implementation all over Maharashtra hospitals and police stations. Disturbingly, the proformas lay emphasis on injures per se, whether in penetrative sexual assault or non penetrative sexual assault. This would provide absolutely wrong directions to a doctor while conducting examinations; thereby it would be interpreted as “no injuries would mean no sexual assault”. Analysis of sexual assault cases handled by CEHAT dispels the myths around injuries completely. Further the guidelines did not even mention the nature of therapeutic care required by survivors of sexual assault. CEHAT, in response to the court order, filed a review application to draw attention of the judiciary to the fact that the proformas submitted by the committee do not follow the WHO standards and are also in contradiction with the Indian law. Several efforts were made to build opinion amongst health professionals, NGOs and civil society on the problems with the state proforma, in the form of consultations. Since the proformas were not on par with the international standards established by the WHO for health care response, CEHAT sought a WHO technical opinion on these proformas and manual and submitted it to the GoM. Efforts were made to involve experts from the field of Medicine, women’s rights activists, lawyers, social workers to discuss ways of getting the GoM to understand the problems.
A state level consultation was organized at the Directorate of Health Services office in Mumbai on 6 August 2011. A response was filed in Nagpur court citing opinions from Indian forensic medicine experts, as well as a WHO technical opinion on the Maharashtra protocol. Despite the agreements arrived upon with the government of Maharashtra committee, the revised proforma and manual submitted to the court were unacceptable on the same grounds. Further, unscientific reasons were provided for not incorporating the changes. For two years following this, CEHAT repeatedly appealed that the proformas be revised, and continued to engage with the government of Maharashtra officials including the Director of Health Services and the Health Secretary. This engagement led to certain superficial changes, but on the whole, the protocol developed by the health department is far from comprehensive when compared with the guidelines for medico legal care of sexual assault survivors by WHO. In the meantime, the criminal law underwent an amendment in April 2013, and the guidelines were not even in consonance with the amended law. Now, even the law has now recognized the right to care and treatment but the Government of Maharashtra protocol does not include it which can lead to violation of survivor’s s right to health care.
State Aided Charitable Hospitals in Mumbai
Charitable Trust Hospitals are one of the oldest forms of public private partnerships in the country. These hospitals get various benefits from the government such as land, electricity at subsidised rates, concessions on import duty and income tax, in return for which they are expected to provide free treatment to a certain number of indigent patients. In 2004, a Public Interest Litigation was filed in the High Court of Mumbai, challenging the hospitals that were not providing free treatment to poor and weaker sections. A scheme was instituted by the high court formalising the 20 per cent beds set aside for free and concessional treatment. In Mumbai, these hospitals have a combined capacity of more than 1600 beds. However, it has been brought to light both by the government and the media that these hospitals routinely flout their legal obligations. Considering that charitable hospitals are key resources for provisioning of health services to an already strained public health system it is vital to ensure their accountability.
This study by CEHAT intended to look at the literature on the history of state aided charitable hospitals in Maharashtra, with special focus on Mumbai, and appraise the nature of engagement between the private sector and the state aided hospitals. It critically reviewed the data submitted by the state aided charitable hospitals of Mumbai to the Charity Commissioner on free and subsidised patients, to estimate the degree of compliance to by the hospitals and also to monitor them. We hope that the findings of the study would be useful in making key recommendations for effective implementation of the high court scheme, especially for guaranteeing access to the poor to the 20% beds that are set aside.
Findings of the study:
Advocacy on Abortion and sex-selection
Recently there have been a series of knee jerk reactions by the GoM as a response to the rising pressure to curb sex selection. The Census 2011 found that the sex ratios have further declined both nationally as well as at the state level. In Maharashtra, the sex ratios have declined in almost all districts making it a state issue and not a regional matter anymore. CEHAT staff has been involved in many ways in responding to these proposals from writing letters to the officials, issuing press statements, working with journalists, amongst others. From proposing that abortion should be considered as murder, to replicating a bizarre scheme like ‘Silent Observer’ that tracks all pregnancies through software in the ultrasound machines, to seeking permissions for every abortion from municipal commissioner of the city are some examples of such responses. A lot of effort and time was spent by the CEHAT in coordination with the media, civil society representatives to ensure that a strong resistance was built.
In September 2011, a committee for ‘control of unauthorized abortions’ was appointed under the chairmanship of Dr.Sanjay Oak (Dean, KEMH), by the Health Minister. Padma Deosthali from CEHAT was appointed on the committee along with several others including a representative of FOGSI and UNFPA. While most of the recommendations were positive - about increasing awareness of and access to abortion services - there were voices that felt that in the context of falling sex ratios, there should be more stringent monitoring of abortions. Two recommendations were made by the committee in this light – one to preserve photographic evidence of every second-trimester abortus, and the second to make medical abortion pills available only with service providers registered under MTP. Six out of the nine members vehemently opposed these recommendations arguing that it would reduce access to abortion but the Chairperson insisted on making it a recommendation along with dissenting note. A letter signed by all the six members was submitted to the health minister expressing concern over these suggestions.
Senior police officers were designated by the Government of Maharashtra, as nodal officers at district level for implementation of the MTP and PCPNDT Acts. Both the laws have absolutely no role for the police, the monitoring mechanisms under both the acts are clearly defined. CEHAT staff participated as resource persons for training of the police on these acts and deliberated upon the salient features of the act and emphasized issues such as confidentiality of MTP records, right to abortion for women, barriers in seeking safe abortion, reasons for delay in seeking abortions indicating vulnerability of women. The need for privacy and confidentiality as core to abortion services was underscored.
Campaign against Forced and Coerced Sterilization - IFHHRO
As the Asia Regional Focal Point of the IFHHRO, CEHAT has been actively participating in all its activities. IFHHRO, OSI and other NGOs have launched a campaign in 2010 to address certain key issues of human rights violations in health care settings. One of the issues being addressed through the campaign is that of forced and coerced sterilization. In the context of India, it was felt that there is a need to deliberate upon the existing guidelines for sterilizations, particularly to address issues of quality of care and consent. A working group for evaluation of existing guidelines on sterilization was constituted, comprising of gynaecologists, representatives of professional associations (FOGSI), and policy groups working on the issue of family planning in India. Dr. Nikhil Datar(R.N.Cooper Hospital and FOGSI), Dr.Abhijit Das (Center for Health and Social Justice), Dr. Surekha Mehta (Ex-Quality Assurance Committee Convener, MCGM), Dr. SuchitraDalvie (CommonHealth), Dr.P.K.Shah(President, FOGSI), Dr.M.C.Patel (Medico-legal Cell, FOGSI), Dr. Subha Sri (RUWSEC) were invited to be members of the working group in addition to three CEHAT representatives.
The working group met in August 2011 and discussed the existing policies and problems with the guidelines for sterilization. Prior to the meeting, CEHAT analyzed the various circulars on sterilization received from the State government, against national as well as international guidelines such as the FIGO ones. Under the national population program, there is a clear emphasis on female sterilization as a method of contraception, as against other reversible methods or even male sterilization. This raises several issues regarding women’s contraceptive choices and the potential for coercion. Analysis of circulars also found that there are discrepancies between the circulars issued by the State, the National guidelines on sterilization, and those of FIGO. Based on this analysis, several issues related to informed consent, case selection, sterilization concurrent with abortion, standards of care, functioning of quality assurance committees and the need for review of guidelines for sterilization were discussed at length in the first meeting. As a first step it was discussed that the FIGO guidelines which addressed some of these issues in a progressive manner should be modified to bring in the Indian context and presented to the FOGSI for endorsement as a policy statement. The FIGO guidelines were reviewed and amendments made, contextual to the Indian scenario. The statement was sent to FOGSI for endorsement. It was reviewed by the FOGSI managing committee and revisions suggested.
Team: Sana Contractor, Anita Jain
Supported by: IFHHRO
NATIONAL CAMPAIGN ON SAFE ABORTION
Introduction to the campaign
Unsafe abortion is one of the leading causes of maternal mortality in India. The burden of abortion related mortality and morbidity is disproportionately higher among adolescents and adult women from marginalized groups.
Though abortion is legally available under the provisions of the Medical Termination of Pregnancy Act (MTP Act) of 1972, but poor implementation of the Act and quality of abortion services pose several barriers for women’s access to safe abortion services.
Health Budget and Advocacy
CEHAT’s work on health financing has led to a lot of literature on health budgets, financing and expenditure issues, including large field based studies to generate primary data. CEHAT has been conducting trainings and involved in advocacy on budgets among people to raise awareness and mobilize them for demanding higher allocations to social sector especially health. In the initial years CEHAT did research projects and came out with papers which mainly looked at major macro and micro issues related to the health services and financing. Health Expenditure Across States Financing of Disease Control Programmes in India
Budget is a critical policy document of the government that not only indicates the expenditure incurred but also reflects the policy priorities of the government. Understanding the budget and analyzing it can be effective instrument to demand transparency, accountability and to generate public pressure for influencing policy.
Follow-up with the Government on the implementation of rules for the BNHR Act and creating awareness amongst patients about patients rights
The draft rules for BNHRA were submitted to the Government of Maharashtra in June 2006, which remain on paper till date. The main efforts were to regularly follow up with the Public Health Department and the Office of the Director General of Health Services. The Jan Aarogya Abhiyan too made efforts for implementation of BNHRA. In addition to follow up with the health bureaucracy through letters and meetings, CEHAT also worked towards creating awareness amongst patients on the issue of Patients Rights as part of the JSA. The posters and brochures on Patient Right were disseminated among the patients on the world health day. Radio spots on the patient right and Emergency services were done for MUST community radio started by Mumbai University.
Advocacy and Campaigns on Violence against Women
Along with the service provision and training, efforts are been made to create awareness about the issue and change of attitude in society about violence against women. The main objectives of advocacy is to create awareness about gender based violence and its consequences on women; to create awareness about the crisis centre and its services amongst organisations, other hospitals, health posts and maternity homes and community at large.