'Govt Was Right In Shifting Sonam Wangchuk To Hospital' : Delhi High Court Refuses Interim Plea For Private Hospital Transfer

In a special Sunday sitting to hear a plea moved by activist Sonam Wangchuk's wife, Dr Gitanjali Angmo, the Delhi High Court refused to pass any interim order allowing him to be shifted to a private hospital of his own choice.

The High Court did not find the Government's decision to shift him to a hospital from the Jantar Mantar protest site - where he had been holding a hunger strike since June 28- to be "an arbitrary action."

"Considering the fact that Mr. Sonam Wangchuck on his own volition did not check himself into any hospital facility, the Govt was within its rights to take such action as already stated," Justice Mini Pushkarna observed in the order.

The Judge noted that the doctors at the Safdarjung Hospital are closely monitoring his health and have only administered ORS without sugar and Potassium Chloride tablets with his consent. Hence, it cannot be said that any force has been used or his bodily autonomy has been violated, the Judge observed.

The Court also accepted the Centre's submission that Wangchuk's wife and brother are given access to him and that they are given a separate room.

"Considering this, no interim order is required to be passed at this stage," the Court observed, while ordering notice to the respondents on Angmo's writ petition. The Centre has been asked to file a reply within three days.

After the order was dictated, the Additional Solicitor General requested to observe in the order that the doctors will have the right to make whatever interventions necessary to save his life.

Considering this, Justice Pushkarna added in the order, "Mr. Wangchuk will cooperate with doctors in administering any medical intervention, as doctors feel."

However, Senior Advocate Kapil Sibal, for Wangchuk, objected to this observation, saying that it will allow forcing of treatment on him against his consent. Justice Pushkarna then said that she has not passed any direction, and agreed to qualify the sentence by adding "if he chooses." The ASG however raised a concern that this will add more problems, as it will entitle Wangchuk to even refuse water. The observation was then omitted from the order. The Court ultimately stated :

“The ultimate decision on any medical condition will be monitored by medical team which shall decide as per medical protocol”.

Sibal also urged the Court to order the removal of police personnel from Wangchuk's room. The ASG however disputed the presence of cops there.

Courtroom hearing

Senior Advocate Kapil Sibal, appearing for Angmo, submitted that following the July 16 order of the Delhi High Court, Wangchuk was taken to Safdarjung Government Hospital on July 18, where there is no access to him. "No access to his doctors, his lawyers. We don't know prescriptions given to him," Sibal said. He added that since Wangchuk was not under detention and there was no offence alleged against him, he should have the option to go to a hospital of his choice. Sibal said that Medanta Hospital has agreed to admit him.

Sibal undertook that Wangchuk, if permitted by the Court, will get admitted at Medanta and will take treatment from there.

Additional Solicitor General Chetan Sharma, for the Union, submitted that Wangchuk was in a "deteriorating health situation" following his 18-day fast, which necessitated the police action. He informed that apart from doctors of Safdarjung, doctors from AIIMS are also monitoring his situation. He highlighted there is a degree of sanctity attached to Government doctors, as the Courts usually rely upon them for medical intervention in cases."Even the President of India takes treatment from AIIMS," the ASG said.

The ASG submitted that Wangchuk and his wife ought to have "complete faith in the integrity of the doctors".

"They have absolutely no reason to have any sort of remotest doubt...he has been taken care of...but he has to cooperate with the attending doctors as also with what the division bench of this Court observed," ASG asserted.

The ASG said that Angmo has been given access to Wangchuk. However, he objected to her prayer to grant access to lawyers also. "This is a hospital, not a court. What sort of prayer is this? This is befuddling," he asked.

"I am even willing to go to this extent of saying, assuming they have doubts, he can be shifted to AIIMS." ASG added.

The Court also interacted with Dr Akshay, Addl Professor, Emergency Medicine, AIIMS, who said he has been monitoring Wangchuk's situation. He submitted that Wangchuk has started taking ORS orally without sugar and potassium tablets. Since Wangchuk refused to take IV fluids, the same has not been given to him. Some of his parameters, like potassium, sodium and sugar levels, are borderline, and his body has started the "ketosis" phenomenon, the doctor informed.

In reply, Sibal, asserting that Wangchuk is not under detention, asked, "Is a citizen not entitled to go to a hospital of his choice? How can the Government object?". Sibal pointed out that the July 16 order was passed without any notice to Wangchuk.

Justice Pushkarna then asked, "Is it not the Court's duty to take care of his health when he has fasted for about 18 days and there is a division bench order?" The Judge added that the respondents were not administering anything to him forcefully.

Sibal reiterated that he has a right to go to a hospital of his choice. He added that in Ladakh, he had fasted for 35 days without any problem. Sibal said that the State was referring to the procedure when a person who is under detention is given treatment.

"Tell me, why did the Government have to take this action? You did not go to any doctor on your own," Justice Pushkarna pointed out.

Sibal repeated the prayer for going to a hospital of his own choice. "I want to be in an environment where I want to be, where my family, friends and lawyers can visit me."

The ASG responded that it was an "extraordinary circumstance", where the Government has to be extra careful. "Whatever happens to him, it will have consequences. So the Government has to be circumspect, and extra conscious." 

Dr Kavita, Medical Superintendent at Safdarjung, told the bench that from the outset, Wangchuk did not express confidence in the hospital, and this resulted in "our hands being tied."

Sibal said that Wangchuk is surrounded by policemen, and this actually resulted in shooting up of his blood pressure. Angmo, who was in the Court, submitted that whenever she tried to speak with Wangchuk, the policemen were eavesdropping.

Angmo said that there were doubts regarding the Potassium figures stated by the doctors, and the hospital was not entertaining her request for a sample for a second opinion. If the potassium figure was so low, then the hospital should not have delayed giving the sample, Angmo said. The sample was given 10 hours later, and the test conducted at a private lab showed that the figures were normal. "They wanted to put him on IV for no reason," she said, adding that the hospital's response broke the trust in them.

The ASG then intervened, and told Angmo, "This is not an activist forum, this is a court. Don't be obdurate. Activism can rest."

"Nobody can hold me to a place against my wish unless we are detained," she replied. "The activist in you has taken over," came the ASG's reply.

Senior Advocates Akhil Sibal and Viven Thankha were also present on behalf of Dr.Angmo.

Arguments in the petition

Angmo contended that he is being "illegally and unconstitutionally confined" under the guise of medical intervention after being forcibly removed from his hunger strike at Jantar Mantar.

The writ petition seeks a declaration that Wangchuk's continued confinement at Safdarjung Hospital is unconstitutional and prays for his immediate discharge and transfer to a hospital of his and his family's choice. It also seeks unrestricted access to him for his lawyers and doctors who had been treating him during the hunger strike, besides a direction restraining authorities from administering any medical treatment without his informed consent or, if he is unable to consent, without the consent of his wife.

Angmo submitted that the July 16 order did not authorise the authorities to remove Wangchuk from the protest site, detain him in hospital or deny him access to his legal counsel and treating doctors. He pointed out that neither Wangchuk nor his wife was a party to the earlier PIL in which the High Court directed the government to monitor his health and undertake medical intervention if required.

Angmo alleges that there was no medical emergency warranting such coercive action, claiming that Wangchuk's vital parameters were stable and that he was already under continuous medical supervision at the protest site. She further claims that she was not informed about his removal despite his request and learnt of it only through a volunteer.

A significant plank of the petition concerns an alleged discrepancy in Wangchuk's potassium levels. The plea states that a medical report dated July 17 recorded his potassium level at 4.3 mmol/L, within the normal range. However, after he was shifted to Safdarjung Hospital, doctors allegedly informed the family that his potassium level had fallen to 2.9 mmol/L, necessitating urgent medical intervention.

The petition says Angmo immediately requested that the blood sample be independently tested. According to the plea, the hospital supplied the blood sample only after a delay of around 10.5 hours. An independent laboratory thereafter allegedly recorded Wangchuk's potassium level at 3.6 mmol/L, which the petitioner says contradicts the hospital's earlier assessment and raises serious doubts about the claimed medical emergency. The petition alleges that the discrepancy demonstrates mala fide conduct by the authorities in justifying Wangchuk's removal from the protest site.

The plea further alleges that despite three written representations, the authorities have refused to discharge Wangchuk or permit his transfer to a hospital chosen by the family. It also claims that only selective medical information has been disclosed, access has been denied to his lawyers and doctors who had been treating him during the hunger strike, and Angmo herself was not permitted to carry her phone while meeting him.

Describing Wangchuk's continued stay in hospital as unlawful, the petition argues that there is no FIR, arrest order, preventive detention order or any other legal authority permitting his confinement. It alleges that "medical intervention" is being used as a pretext to prevent him from continuing his peaceful hunger strike and thereby suppress his fundamental rights under Articles 19 and 21 of the Constitution. The petition also asserts that a competent adult has the right to bodily autonomy, informed consent and refusal of medical treatment, and that these constitutional guarantees cannot be overridden by an ex parte judicial order directing health monitoring.

The plea seeks immediate release of Wangchuk from what it describes as illegal confinement, permission to shift him to a hospital of his choice, complete disclosure of all medical records on a real-time basis, unrestricted access to him for his wife and legal counsel, and a direction that no medicine, intravenous fluids or any other medical intervention be administered without his informed consent.

Click here to read order