Operationalising Right to Healthcare in India
By Ravi Duggal
Preamble: Health is one of the goods of life to which man has a right; wherever this concept prevails the logical sequence is to make all measures for the protection and restoration of health to all, free of charge; medicine like education is then no longer a trade - it becomes a public function of the State ...
More than half a century’s
experience of waiting for the policy route to assure respect, protection and
fulfillment for healthcare is now behind us. The Bhore Committee
recommendations which had the potential for this assurance were assigned to the
back-burner due to the failure of the state machinery to commit a mere 2% of
the Gross Domestic Product at that point of time for implementation of the
Bhore Plan (Bhore, 1946). The experience over the nine plan periods since then
in implementing health plans and programs has been that each plan and/or health
committee contributed to the dilution of the comprehensive and universal access
approach by developing selective schemes or programs, and soon enough the Bhore
plan was archived and forgotten about. So our historical experience tells us
that we should abandon the policy approach and adopt the human rights route to
assuring universal access to all people for healthcare. The State is today
talking of health sector reform and hence it is the right time to switch gears
and move in the direction of right to health and healthcare.
The right to healthcare is
primarily a claim to an entitlement, a positive right, not a protective fence.[i]
As entitlements rights are contrasted with privileges, group ideals, societal
obligations, or acts of charity, and once legislated they become claims
justified by the laws of the state. (Chapman, 1993) The emphasis thus needs to
shift from ‘respect’ and ‘protect’ to focus more on ‘fulfill’. For the right to
be effective optimal resources that are needed to fulfill the core obligations
have to be made available and utilized effectively.
Further, using a human rights
approach also implies that the entitlement is universal. This means there is no
exclusion from the provisions made to assure healthcare on any grounds whether
purchasing power, employment status, residence, religion, caste, gender, disability,
and any other basis of discrimination.[ii]
But this does not discount the special needs of disadvantaged and vulnerable
groups who may need special entitlements through affirmative action to rectify
historical or other inequities suffered by them.
Thus establishing universal
healthcare through the human rights route is the best way to fulfill the
obligations mandated by international law and domestic constitutional
provisions. International law, specifically ICESCR, the Alma Ata Declaration,
among others, provide the basis for the core content of right to health and
healthcare. But country situations are very different and hence there should
not be a global core content, it needs to be country specific.[iii]
In India’s case a certain trajectory has been followed through the policy route
and we have an existing baggage, which we need to sort out and fit into the new
strategy.
Specific features of this
historical baggage are:
Thus the operationalisation of the
right to healthcare will have to be developed keeping in mind what we have and
how we need to change it.
Framework for Right to Healthcare
The quote used as the Preamble is
very relevant to the notion of right to healthcare. Sigerist said this long ago
and since then most of Europe and many other countries have made this a
reality. And today when such demands are raised in third world countries, India
being one of them, it is said that this is no longer possible - the welfare
state must wither away and make way for global capital! Europe is also facing
pressures to retract the socialist measures, which working class struggles had
gained since 19th century. So we are in a hostile era of global
capital which wants to make profit out of anything it can lay its hands on. But
we are also in an era when social and economic rights, apart from the civil and
political rights, are increasingly on the international agenda and an important
cause for advocacy.
Thus health and health care is now
being viewed very much within the rights perspective and this is reflected in Article 12 “The
right to the highest attainable standard of health” of the International
Covenant on Economic, Social and Cultural Rights to which India has acceded.
According to the General Comment 14 the Committee for Economic, Social and
Cultural Rights states that the right to health requires availability, accessibility,
acceptability, and quality
with regard to both health care and underlying preconditions of health. The
Committee interprets the right to health, as defined in article 12.1, as an
inclusive right extending not only to timely and appropriate health care
but also to the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions, and
access to health-related education and information, including on sexual and
reproductive health. This understanding
is detailed below:
The right
to health in all its forms and at all levels contains the following
interrelated and essential elements, the precise application of which will
depend on the conditions prevailing in a particular State party:
(a)
Availability. Functioning public health and health-care facilities, goods
and services, as well as programmes, have to be available in sufficient
quantity within the State party. The precise nature of the facilities, goods
and services will vary depending on numerous factors, including the State
party's developmental level. They will include, however, the underlying
determinants of health, such as safe and potable drinking water and adequate
sanitation facilities, hospitals, clinics and other health-related buildings,
trained medical and professional personnel receiving domestically competitive
salaries, and essential drugs, as defined by the WHO Action Programme on
Essential Drugs.
(b)
Accessibility. Health facilities, goods and services have to be accessible
to everyone without discrimination, within the jurisdiction of the State party.
Accessibility has four overlapping dimensions:
Non-discrimination: health
facilities, goods and services must be accessible to all, especially the most
vulnerable or marginalized sections of the population, in law and in fact,
without discrimination on any of the prohibited grounds.
Physical
accessibility: health facilities, goods and services must be within safe
physical reach for all sections of the population, especially vulnerable or
marginalized groups, such as ethnic minorities and indigenous populations,
women, children, adolescents, older persons, persons with disabilities and
persons with HIV/AIDS. Accessibility also implies that medical services and
underlying determinants of health, such as safe and potable water and adequate
sanitation facilities, are within safe physical reach, including in rural
areas. Accessibility further includes adequate access to buildings for persons
with disabilities.
Economic
accessibility (affordability): health facilities, goods and
services must be affordable for all. Payment for health-care services, as well
as services related to the underlying determinants of health, has to be based
on the principle of equity, ensuring that these services, whether privately or
publicly provided, are affordable for all, including socially disadvantaged
groups. Equity demands that poorer households should not be disproportionately
burdened with health expenses as compared to richer households.
Information
accessibility: accessibility includes the right to seek, receive and
impart information and ideas concerning health issues. However, accessibility
of information should not impair the right to have personal health data
treated with confidentiality.
(c) Acceptability.
All health facilities, goods and services must be respectful of medical ethics
and culturally appropriate, i.e. respectful of the culture of individuals,
minorities, peoples and communities, sensitive to gender and life-cycle
requirements, as well as being designed to respect confidentiality and improve
the health status of those concerned.
(d)
Quality. As well as being culturally acceptable, health facilities, goods
and services must also be scientifically and medically appropriate and of good
quality. This requires, inter alia, skilled medical personnel,
scientifically approved and unexpired drugs and hospital equipment, safe
and potable water, and adequate sanitation. (Committee on Economic, Social
and Cultural Rights Twenty-second session 25 April-12 May 2000)
Universal access to good quality
healthcare equitably is the key element at the core of this understanding of
right to health and healthcare. To make this possible the State parties are
obligated to respect, protect and fulfill the above in a progressive
manner:
The right
to health, like all human rights, imposes three types or levels of obligations
on State parties: the obligations to respect, protect and fulfill.
In turn, the obligation to fulfill contains obligations to facilitate, provide
and promote. The obligation to respect requires States to refrain from
interfering directly or indirectly with the enjoyment of the right to health.
The obligation to protect requires States to take measures that prevent
third parties from interfering with article 12 guarantees. Finally, the
obligation to fulfill requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards the
full realization of the right to health. (Ibid)
(Further) State parties are
referred to the Alma-Ata Declaration, which proclaims that the existing gross
inequality in the health status of the people, particularly between developed
and developing countries, as well as within countries, is politically, socially
and economically unacceptable and is, therefore, of common concern to all
countries. State parties have a core obligation to ensure the satisfaction of,
at the very least, minimum essential levels of each of the rights enunciated in
the Covenant, including essential primary health care. Read in conjunction with
more contemporary instruments, such as the Programme of Action of the
International Conference on Population and Development, the Alma-Ata Declaration
provides compelling guidance on the core obligations arising from Article 12.
Accordingly, in the Committee's view, these core obligations include at least
the following obligations:
(a) To
ensure the right of access to health facilities, goods and services on a
non-discriminatory basis, especially for vulnerable or marginalized groups;
(b) To
ensure access to the minimum essential food which is nutritionally adequate and
safe, to ensure freedom from hunger to everyone;
(c) To
ensure access to basic shelter, housing and sanitation, and an adequate
supply of safe and potable water;
(d) To
provide essential drugs, as from time to time defined under the WHO Action
Programme on Essential Drugs;
(e) To
ensure equitable distribution of all health facilities, goods and services;
(f) To
adopt and implement a national public health strategy and plan of action, on
the basis of epidemiological evidence, addressing the health concerns of the
whole population; the strategy and plan of action shall be devised, and
periodically reviewed, on the basis of a participatory and transparent process;
they shall include methods, such as right to health indicators and benchmarks,
by which progress can be closely monitored; the process by which the strategy
and plan of action are devised, as well as their content, shall give particular
attention to all vulnerable or marginalized groups.
The
Committee also confirms that the following are obligations of comparable
priority:
(a) To
ensure reproductive, maternal (pre-natal as well as post-natal) and child
health care;
(b) To
provide immunization against the major infectious diseases occurring in the
community;
(c) To
take measures to prevent, treat and control epidemic and endemic diseases;
(d) To
provide education and access to information concerning the main health problems
in the community, including methods of preventing and controlling them;
(e) To
provide appropriate training for health personnel, including education
on health and human rights. (Ibid)
The above guidelines from General
Comment 14 on Article 12 of ICESCR are critical to the development of the
framework for right to health and healthcare. As a reminder it is important to
emphasise that in the Bhore Committee report of 1946 we already had these
guidelines, though they were not in the 'rights' language. Thus within the
country's own policy framework all this has been available as guiding
principles for now 56 years.
Before we move on to suggest the
framework it is important to review where India stands today vis-à-vis the core
principles of availability, accessibility, acceptability and quality in terms
of the State's obligation to respect, protect and fulfill.
In Table 1 we see that the
availability of healthcare infrastructure, except perhaps availability of
doctors and drugs - the two engines of growth of the private health sector, is
grossly inadequate. The growth over the years of healthcare services,
facilities, humanpower etc.. has been inadequate and the achievements not
enough to make any substantive impact on the health of the people. The focus of
public investment in the health sector has been on medical education and
production of doctors for the private sector, support to the pharmaceutical
industry through states own participation in production of bulk drugs at
subsidized rates, curative care for urban population and family planning
services. The poor health impact we see today has clear linkages with such a
pattern of investment:
Then there are the underlying
conditions of health and access to factors that determine this, which are
equally important in a rights perspective. Given the high level of poverty and
even a lesser level of public sector participation in most of these factors the
question of respecting, protecting and fulfilling by the state is quite remote.
Latest data from NFHS-1998 tells the following story:
Besides this environmental health
conditions in both rural and urban areas are quite poor, working conditions in
most work situations, including many organized sector units, which are governed
by various social security provisions, are unhealthy and unsafe. Infact most of
the court cases in India using Article 21 of the Fundamental Rights and
relating it to right to health have been cases dealing with working conditions
at the workplace, workers rights to healthcare and environmental health related
to pollution.
Other concerns in access relate to
the question of economic accessibility. It is astounding that large-scale
poverty and predominance of private sector in healthcare have to co-exist. It
is in a sense a contradiction and reflects the State’s failure to respect,
protect and fulfill its obligations by letting vast inequities in access to
healthcare and vast disparities in health indicators, to continue to persist,
and in many situations get worse. Data shows that out of pocket expenses
account for over 4% of the GDP as against only 0.9 % of GDP expended by state
agencies, and the poorer classes contribute a disproportionately higher amount
of their incomes to access health care services both in the private sector and
public sector. (Ellis, et.al, 2000; Duggal, 2000; Peters et.al. 2002). Further,
the better off classes use public hospitals in much larger numbers with their
hospitalization rate being six times higher than the poorest classes[x],
and as a consequence consume an estimated over three times more of public
hospital resources than the poor. (NSS-1996; Peters et.al. 2002)
Related to the above is another
concern vis-à-vis international human rights conventions’ stance on matters
with regard to provision of services. All conventions talk about affordability
and never mention ‘free of charge’. In the context of poverty this notion
is questionable as far as provisions for social security like health, education
and housing go. Access to these factors socially has unequivocal consequences
for equity, even in the absence of income equity. Free services are viewed
negatively in global debate, especially since we have had a unipolar world,
because it is deemed to be disrespect to individual responsibility with regard
to their healthcare. (Toebes, 1998, p.249) For instance in India there is great
pressure on public health systems to introduce or enhance user fees, especially
from international donors, because they believe this will enhance
responsibility of the public health system and make it more efficient (Peters,
et. al.,2002). In many states such a policy has been adopted in India and
immediately adverse impacts are seen, the most prominent being decline in
utilization of public services by the poorest. It must be kept in mind that
India's taxation policy favours the richer classes. Our tax base is largely
indirect taxes, which is a regressive form of generating revenues. Direct tax
revenues, like income tax is a very small proportion of total tax revenues.
Hence the poor end up paying a larger proportion of their income as tax
revenues in the form of sales tax, excise duties etc.. on goods and services
they consume. Viewed from this perspective the poor have already pre-paid for
receiving public goods like health and education from the state free of cost at
the point of provision. So their burden of inequity increases substantially if
they have to pay for such services when accessing from the public domain.
The above inequity in access gets
reflected in health outcomes, which reflect strong class gradients. Thus infant
and child mortality, malnutrition amongst women and children, prevalence of
communicable diseases like tuberculosis and malaria, attended childbirth are
between 2 to 4 times better amongst the better off groups as compared to the
poorest groups. (NFHS-1998) In this quagmire of poverty, the gender disparities
also exist but they are significantly smaller than the class inequities. Such
disparity, and the consequent failure to protect by the state the health of its
population, is a damning statement on the health situation of the country. In
India there is an additional dimension to this inequity – differences in health
outcomes and access by social groups, specifically the scheduled castes and
scheduled tribes. Data shows that these two groups are worse off on all counts
when compared to others. Thus in access to hospital care as per NSS-1996 data
the STs had 12 times less access in rural areas and 27 times less in urban
areas as compared to others; for SCs the disparity was 4 and 9 times, in rural
and urban areas, respectively. What is astonishing is that the situation for
these groups is worse in urban areas where overall physical access is
reasonably good. Their health outcomes are adverse by 1.5 times that of others.
(NFHS-1998)
Another stumbling block in meeting
state obligations is information access. While data on public health services,
with all its limitations, is available, data on the private sector is
conspicuous by its absence. The private sector, for instance does not meet its
obligations to supply data on notifiable, mostly communicable, diseases, which
is mandated by law. This adversely affects the epidemiological database for
those diseases and hence affects public health practice and monitoring
drastically. Similarly the local authorities have miserably failed to register
and record private health institutions and practitioners. This is an extremely
important concern because all the data quoted about the private sector is an
under-estimate as occasional studies have shown.[xi]
The situation with regard to practitioners is equally bad. The medical councils
of all systems of medicine are statutory bodies but their performance leaves
much to be desired. The recording of their own members is not up to the mark,
and worse still since they have been unable to regulate medical practice there
are a large number of unqualified and untrained persons practicing medicine
across the length and breadth of the country. Estimates of this unqualified
group vary from 50% to 100% of the proportion of the qualified practitioners.
(Duggal, 2000; Rhode et.al.1994) The profession itself is least concerned about
the importance of such information and hence does not make any significant
efforts to address this issue. This poverty of information is definitely a
rights issue even within the current constitutional context as lack of such
information could jeopardize right to life.
Finally there are issues pertaining to acceptability and quality.
Here the Indian state fails totally. There is a clear rural-urban dichotomy in
health policy and provision of care; urban areas have been provided
comprehensive healthcare services through public hospitals and dispensaries and
now even a strengthened preventive input through health posts for those
residing in slums. In contrast rural areas have largely been provided
preventive and promotive healthcare alone. This violates the principle of
non-discrimination and equity and hence is a major ethical concern to be
addressed.
Medical practice, especially
private, suffers from a complete absence of ethics. The medical associations
have as yet not paid heed to this issue at all and over the years malpractices
within medical practice have gone from bad to worse. In this malpractice game
the pharmaceutical industry is a major contributor as it induces doctors and
hospitals to prescribe irrational and/or unnecessary drugs.[xii]
All this impacts drastically on quality of care. In clinical practice and
hospital care in India there exist no standard protocols and hence monitoring
quality becomes very difficult. For hospitals the Bureau of Indian Standards
have developed guidelines, and often public hospitals do follow these
guidelines. (BIS, 1989; Nandraj and Duggal, 1997) But in the case of private
hospitals they are generally ignored. Recently efforts at developing
accreditation systems has been started in Mumbai (Nandraj, et.al, 2000)[xiii],
and on the basis of that the Central government is considering doing something
at the national level on this front so that it can promote quality of care.
To establish right to healthcare
with the above scenario certain first essential steps will be compulsory:
As an immediate step, within its
own domain, the State should undertake to accomplish the following: