Informal Service Providers of Health Care Recognition & Legitimacy 21/03/14 Legal Framework Indira Unninayar, Advocate.

Informal Service Providersof Health Care

Recognition & Legitimacy

21/03/14 Legal Framework Indira Unninayar, Advocate


RURAL & URBAN POORWHO ARE 80% POPULATION

Facts Summary •Public healthcare infrastructure is 1/3rd to 1/6th of what is recommended

•80% of healthcare is CURATIVE instead of being PREVENTIVE

•Most healthcare is out of pocket; 2.2% / 60 lakh Indians are pushed below poverty line every year


Expenditure on Healthcare


Informal Healthcare Providers (Estimates)

•For every 1,00,000 (1 lakh) :– There are ONLY 62.5 qualified doctors in India– Of which there are ONLY 5 in Rural India– And 197 in Urban India

•For a total population of 1.21 billion: • Only 6,00,000 qualified doctors practice allopathy PLUS• 6,00,000 qualified doctors practice Ayurveda, Homeopathy, Unani,

Sidha

PLUS

• 10-15 lakh Informal Providers practice healthcare• BUT Informal Providers are not ‘recognized’ and lack ‘legitimacy’


Necessary numbers

•For every 1,000 population:– India has .6 physicians + 1 nurses/midwives – U.S. has 2.4 physicians + 9.8 nurses/midwives– U.K. has 2.8 physicians + 9.8 nurses/midwives– Brazil has 1.8 physicians + 6.4 nurses/midwives– China has 1.8 physicians + 1.7 nurses/midwives– Singapore has 1.9 physicians + 6.4 nurses/midwives

•To achieve MDG Goals : • Need a minimum of 2.3 physicians, nurses, midwives • Less is a recipe for failure


Situation Today

Healthcare CRISIS in India

Right to Health – a fundamental right, stands seriously violated for most

Indians

HEALTHCARE CRISIS IS ALSO A POVERTY ISSUE 21/03/14 Legal Framework Indira Unninayar, Advocate

Question

• Low utilization of Primary OPD Public Healthcare is because of long distances, inconvenient opening hours, lengthy waiting, staff absenteeism, poor availability of medicines, and poor quality of care

•Informal Healthcare Providers are already filling several of these gaps•Q: Can the State formally utilize this readily available resource with Recognition & Legitimacy?


Constitutional Mandates

Above all laws


Preamble

•Relevant portions:– SOCIALIST– JUSTICE, social, economic – EQUALITY of status and opportunity– Dignity of the individual

•Is the ‘basic structure’ of the Constitution

•Aims - to end poverty, ignorance, disease and inequality of opportunity

•Enables legislation or executive action– To remove inequalities – To protect interests of weaker/vulnerable sections of society


Fundamental Rights (Part III)• Inalienable, guaranteed by State• Article 12

– Government, Parliament– Government, Legislature of each State – All local or other authorities in India or under the control of the GOI

• Article 13– All laws inconsistent with this part shall be void– The State shall not make any law which takes away or abridges the rights

conferred by this part • Article 14 (against arbitrariness, discrimination)

– The State shall not deny to any person equality before the law or the equal protection of the laws in India

• Article 21 (right to health, medical services)– No person shall be deprived of his life or personal liberty except

according to procedure established by law


Fundamental Rights (Part III)- NOT TO BE USED -

• Article 19(1)(g) - Protection of certain rights regarding freedom of speech, etc. (g) to practise any profession, or to carry on any occupation, trade or business

• Article 19(6) – Nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public reasonable restrictions on the exercise of the rights conferred by the said sub-clause, and, in particular, nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to or prevent the State from making any law relating to,-(i)the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.


Fundamental Rights (Part III)• Article 15 - Prohibition of discrimination on grounds of religion, race, caste,

sex or place of birth

(5) Nothing in this article or in 19(1)(g) shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for SC or ST, in so far as such special provisions related to admission to educational institutions including private educational institutions whether aided or unaided by the State

• Article 23 Prohibition of traffic in human beings and forced labour –

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.


Enforcement/Realization of Fundamental Rights (Part III)

• Article 32 – Supreme Court

• Article 226 – High Courts

Anyone can move the courts


Directive Principles of State Policy (Part IV) - OBLIGATION ON STATE• Article 37 – Though the provisions are not enforceable by any court, but the principles therein laid

down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

• Article 38 – (1) State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life

(2) The State shall, in particular, strive to minimize inequalities in status, facilities and opportunities, not only amongst individuals, but also amongst groups of people residing in different areas or engaged in different vocations

• Article 39 – Certain principles of policy to be followed by the State – The State shall, in particular, direct its policy towards securing-

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment

(b) that the ownership and control of material resources of the community are so distributed as to best serve the common good(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment


Directive Principles of State Policy (Part IV)

• Article 41 – Right to work, to education and to public assistance in certain cases – The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want

• Article 42 – The State shall make provision for securing just and humane conditions of work and for maternity relief

• Article 47 – Duty of the State to raise the level of nutrition and the standard of living to improve public health - The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

• 51. The State shall endeavour to— (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and


Fundamental Duties (Part IVA)• Article 51A - It shall be the duty of every citizen of

India—

• (h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

• (i) to safeguard public property and to abjure violence;

• (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;


Jurisdiction I (Union)64. Institutions declared by law to be of national importance (63 – BHU, AMU & DU)65. Union agencies and institutions for-(a)professional, vocational or technical training…(b) promotion of special studies or research66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions


II (State)6. Public health and sanitation, hospitals and dispensaries64. Offences against laws with respect to any of the matters in this list

III (Concurrent)19. Drugs and poisons, subject to …20 Economic and social planning20A Population control and family planning25. Education, including technical education, medical education and universities subject to List I (63-66)26. Legal, medical and other professions29. Prevention of extension of one State to another, of infectious or contagious diseases or pests affecting men, animals or plants.

30. Vital statistics including registration of births and deaths

Health – WHO definition -

• ‘Health’ is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity

• INVOKE INTERNATIONAL CONVENTIONS• COURTS ARE QUITE IGNORANT ABOUT

GROUND REALITIES• USE THEIR OWN JUDGMENTS21/03/14 Legal Framework Indira Unninayar, Advocate

International Commitments

• Universal Declaration of Human Rights, 1948– Right to inherent dignity, human rights– Right to health and medical care (Art 25)

• International Covenant on Economic Social & Cultural Rights (ICESR), 1976– Enjoyment of the highest attainable standard of

physical and mental health (Art 12)– The creation of conditions which would assure to all

medical service and medical attention in the event of sickness.


International Commitments• Alma Ata Declaration, 1978 – The need for urgent action by all governments, all health and

development workers, and the world community to protect and promote the health of all the people of the world

• Strong reaffirmation that health, which is a state of complete physical, mental and social wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and that the attainment of the highest possible level of health is a most important world-wide social goal whose realization requires the action of many

• VI - Primary health care is essential health care based on practical, scientifically sound and socially acceptable methods and technology made universally accessible to individuals and families in the community through their full participation and at a cost that the community and country can afford to maintain at every stage of their development in the spirit of self reliance and self-determination. It forms an integral part both of the country's health system, of which it is the central function and main focus, and of the overall social and economic development of the community. It is the first level of contact of individuals, the family and community with the national health system bringing health care as close as possible to where people live and work, and constitutes the first element of a continuing health care process.


International Commitments• Alma Ata Declaration, 1978 - VII Primary health care:• 1. reflects and evolves from the economic conditions and sociocultural and political characteristics of the

country and its communities and is based on the application of the relevant results of social, biomedical and health services research and public health experience;

• 2. addresses the main health problems in the community, providing promotive, preventive, curative and rehabilitative services accordingly; …

• 5. requires and promotes maximum community and individual self-reliance and participation in the planning, organization, operation and control of primary health care, making fullest use of local, national and other available resources; and to this end develops through appropriate education the ability of communities to participate;

• 6. should be sustained by integrated, functional and mutually supportive referral systems, leading to the progressive improvement of comprehensive health care for all, and giving priority to those most in need;

• 7. relies, at local and referral levels, on health workers, including physicians, nurses, midwives, auxiliaries and community workers as applicable, as well as traditional practitioners as needed, suitably trained socially and technically to work as a health team and to respond to the expressed health needs of the community.

• VIII All governments should formulate national policies, strategies and plans of action to launch and sustain primary health care as part of a comprehensive national health system and in coordination with other sectors. To this end, it will be necessary to exercise political will, to mobilize the country's resources and to use available external resources rationally.


International Commitments WHO/World Health Organization

• The ultimate goal of primary health care is better health for all. WHO has identified five key elements to achieving that goal:

• reducing exclusion and social disparities in health (universal coverage reforms);• organizing health services around people's needs and expectations (service delivery reforms);• integrating health into all sectors (public policy reforms);• pursing collaborative models of policy dialogue (leadership reforms); and• increasing stakeholder participation.

• Key facts• The WHO Constitution enshrines the highest attainable standard of health as a fundamental right of

every human being.• The right to health includes access to timely, acceptable, and affordable health care of

appropriate quality.• Yet, a vast number suffer financial catastrophe annually, lakhs are pushed below the poverty line as a

result of health care expenditure.• The right to health means that States must generate conditions in which everyone can be as healthy as

possible. It does not mean the right to be healthy.• Vulnerable and marginalized groups in societies tend to bear an undue proportion of health problems.


MDG 2000

• Reduce child mortality

• Improve maternal health

• Combat HIV/Aids, Malaria and other diseases

• INDIA LAGS; BANGLADESH STORY – A REALITY CHECK21/03/14 Legal Framework Indira Unninayar, Advocate

NRHM 2005• Improve availability and access to quality health care by people, especially for those

residing in rural areas, the poor, women and children• ASHA (Accredited Social Health Activist)

– with induction training of 23 days, spread over 12 months, and on the job training throughout the year, accountable to the village panchayat

• Efforts to improve skills of RMPs (Registered Medical Practitioners) • Experiments and innovation to improve the position in Rural areas, given the current

problems of availability of Healthcare providers• "an ASHA in every village" in India, a target that translates into 250,000 ASHAs in 10

states. • The grand total number of Ashas in India was reported in January 2013 to be 863,506


Important case law

• Right to health, right to life

•Obligation of State to provide healthcare, medical services without plea of resource constraint


Important case law• Right to health, right to life• Obligation of State to provide health without plea of resource constraint• Paschim Banga Khet Mazdoor Samity vs State of WB : (1996) 4 SCC 37:

• Right to medical services under Art 21• Every citizen looks to the State to perform its obligations with top priority

•CERC vs UOI & Ors: (1995) 3 SCC 42:• In a developing society like ours steeped with unbridgeable and ever widening gaps

of inequality in status and of opportunity, law, what is due cannot be ascertained by absolute standard which keeps changing depending on the time, place and circumstances.

• Elastic, justice to all sections of society•State of Punjab vs Ram Lubhaya Bagga: (1998) 4 SCC 117

• The Right of the State to manage its policy from time to time, under changing circumstances, cannot be challenged.

• The arbitrariness or violation of constitutional mandates can be challenged • Every individual right has to give way to the right of the public at large• Directive Principles have been read into the fundamental rights – to life, to live

with dignity21/03/14 Legal Framework Indira Unninayar, Advocate

Important case law (2)

•Khatri vs. State of Bihar: (1981) 1 SCC 627• State cannot deny constitutional rights based on

resource constraint. A time bound plan is necessary.• It is the joint obligation of the Centre and States to

provide medical services, it is expected that the UOI would render the necessary assistance in improvement of medical services across the country


Watch out for/Challenge Bad Laws

•MCI vs State of Rajasthan: 1996 AIR 2073: 1996 Scale (1) 634• Wrongly says that unless a person has qualified

himself in medicine, he is not eligible to be registered as medical practitioner

•Deliberate mischievous, misinterpretation of laws by the MCI, IMA, or Govt – vested interests


Blocks• MCI, IMA – turf war• Ostensible reason – concern for quality• But in reality, to protect turf interests• Expose them – the referral system, the covert nexus, the real reason violative of right

to health

• Inheritance of a colonial system, designed to undermine indigenous systems and practices and perpetuate control centres

• Generates power centres through a false notion of what is ‘lawful’• Criminalizes those who do not tow the line• But turns a blind eye to the reality of ‘lawlessness’• Similar state of illegality, vagueness, uncertainty, deliberate openings for extortion:• Laws abused, not used

• NMVs• Hawkers, street vendors• Municipal cleaning, rag pickers• Freedom of speech – book, film bans • Judiciary – huge challenge• Informal Providers – huge challenge


Important SC judgments (3)• Dr Mukhtiar Chand vs State of Punjab: (1998) 7 SCC:

• If State law recognizes a qualification then the person is entitled to be medical practitioner

• S 33 of the Drugs & Cosmetics Act confers wide powers on the Central Government to make rules

• Rule 2(ee) of the Drugs & Cosmetics Rules allows the State to declare by a general or special order made by the State Government as a person practising the modern scientific system of medicine

• To fulfill S 15(2) of the IMC Act, she/he should also be registered in a Medical Register of the State. No person other than a medical practitioner enrolled on a State Medical Register, (b) shall practise medicine in any State

• Upheld in Subhasis Bakshi & Ors vs W.B. Medical Council & Ors (2003) 9 SCC 269


Strategies• Use Drugs & Cosmetics Act & Rules • Make representations to Central Govt u/S 10 A for establishment of

new medical college, new course of study• New University under Medical Degrees Act, 1916• New laws including ordinances, delegated legislation• New laws for Healthcare professionals

• Challenge some of the existing court rulings• Make representation seeking the realization of Right to Health and

access to Healthcare

• Invoke international conventions too

• THROUGH REPEATED, PERSISTENT REPRESENTATIONS, CHALLENGES• THROUGH NGOS TOO21/03/14 Legal Framework Indira Unninayar, Advocate

Informal Service Providers of Health Care Recognition & Legitimacy 21/03/14 Legal Framework Indira Unninayar, Advocate.

Documents

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indians healthcare crisis

india right

urban india

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