Operationalising Right to Healthcare in India[1]
Ravi Duggal[2]
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 ... Henry
Sigerist
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.[3] 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.[4]
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.[5]
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.
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.
Where Are We?
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[12], 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.[13]
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.[14]
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)[15],
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: