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:

• a very large and unregulated private health sector with an attitude that the existing policy is the best one as it gives space for maximizing their interests, a complete absence of professional ethics and absolute disinterest in organizing around issues of self-regulation, improvement of quality and accountability, and need for an organised health care system
• a declining public health care system which provides selective care through a multiplicity of schemes and programs, and discriminates on the basis of residence (rural-urban) in providing for entitlements for healthcare
• existing inequities in access to healthcare based on employment status and purchasing power
• inadequate development of various pre-conditions of health like water supply and sanitation, environmental health and hygiene and access to food[6]
• very large numbers of unqualified and untrained practitioners
• declining investments and expenditure in public health
• adequate resource availability when we account for out-of-pocket expenses
• humanpower and infrastructure reasonably adequate, though inequitably distributed
• wasteful expenditures due to lack of regulation and standard protocols for treatment

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 19^th 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:

• the investment in medical education has helped create a mammoth private health sector, not only within India, but in many developed countries through export of over one-fourth of the doctors produced over the years. Even though since mid-eighties private medical colleges have been allowed, still 75-80% of the outturn is from public medical schools. This continued subsidy without any social return[7] is only adding to the burden of inequities and exploitation within the healthcare system in India.
• public sector participation in drug production was a laudable effort but soon it was realized that the focus was on capital goods, that is bulk drug production, and most supplies were directed to private formulation units at subsidized rates. It is true that the government did control drug prices, but post mid-seventies the leash on drug prices was gradually released and by the turn of the nineties controls disappeared. Ironically, at the same time the public pharmaceutical industry has also disappeared – the little of what remains produces a value of drugs lesser than their losses! And with this withering away of public drug production and price control, essential drugs availability has dropped drastically. Another irony in this story is that while today we export 45% of our drug production, we have to import a substantial amount of our essential drug requirements.[8]
• Most public sector hospitals are located in urban areas. In the eighties, post-Alma Ata and India ratifying the ICESCR, efforts were made towards increasing hospitals in rural areas through the Community Health Centres. This was again a good effort but these hospitals are understaffed by over 50% as far as doctors are concerned and hence become ineffective. Today urban areas do have adequate number of beds (including private) at a ratio of one bed per 300 persons but rural areas have 8 times less hospital beds as per required norms (assuming a norm of one bed per 500 persons). So there is gross discrimination based on residence in the way the hospital infrastructure has developed in the country, thereby depriving the rural population access to curative care services.[9] Further, the declining investment in the public health sector since mid-eighties, and the consequent expansion of the private health sector, has further increased inequity in access for people across the country. More recently a facility survey across the country by the Ministry of Health and Family Welfare clearly highlights the inadequacies of the public health infrastructure, especially in the rural areas.[10] This survey is a major indictment of the underdevelopment of the public healthcare system - even the District Hospitals, which are otherwise well endowed, have a major problem with adequacy of critical supplies needed to run the hospital. The rural health facilities across the board are ill provided. (MOHFW, 2001)
• Family planning services is another area of almost monopolistic public sector involvement. The investment in such services over the years has been very high, to the tune of over 15% of the total public health budget. But over and above this the use of the entire health infrastructure and other government machinery for fulfilling its goals must also be added to these resources expended. This program has also witnessed a lot of coercion[11] and grossly violated human rights. The hard line adopted by the public health system, especially in rural areas, for pushing population control has terribly discredited the public health system and affected adversely utilization of other health programs. The only silver lining within this program is that in the nineties immunisation of children and mothers saw a rapid growth, though as yet it is still quite distant from the universal coverage level.

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:

• Piped water is available to only 25% of the rural population and 75% of urban population
• Half the urban population and three-fourths of the rural population does not purify/filter the water in any way
• Flush and pit toilets are available to only 19% of the rural population as against 81% of those in towns and cities
• Electricity for domestic use is accessible to 48% rural and 91% urban dwellers
• For cooking fuel 73% of villagers still use wood. LPG and biogas is accessed by 48% urban households but only 6% rural households
• As regards housing 41% village houses are kachha whereas only 9% of urban houses are so
• 21% of the population chews paan masaala and/or tobacco, 16% smoke and 10% consume alcohol

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.

First Steps Towards Right to Healthcare

To establish right to healthcare with the above scenario certain first essential steps will be compulsory:

• equating directive principles with fundamental rights through a constitutional amendment
• incorporating a National Health Act (similar to Canada Health Act) which will organize the present healthcare system under a common umbrella organization as a public-private mix governed by an autonomous national health authority which will also be responsible for bringing together all resources under a single-payer mechanism
• generating a political commitment through consensus building on right to healthcare in civil society
• development of a strategy for pooling all financial resources deployed in the health sector
• redistribution of existing health resources, public and private, on the basis of standard norms (these would have to be specified) to assure physical (location) equity

As an immediate step, within its own domain, the State should undertake to accomplish the following: