The Telangana High Court on Wednesday held that the state cannot compel residents of Telangana to get (a) testing for COVID-19 in NIMS/Gandhi Medical Hospital or only in the other designated laboratories decided by them and (b) treatment/isolation only in hospitals designated by them, when the residents are willing to pay the cost and get their blood samples tested in the private ICMR approved laboratories or private sector hospitals having the requisite infrastructure by paying the requisite charges.
The bench directed that all private hospitals, who wish to provide treatment/ isolation for COVID-19 patients (other than the ones already granted such approval by the ICMR), shall make an application to the ICMR offering their facilities for the said purpose; the ICMR shall nominate qualified and experienced persons to scrutinise the said applications and cause inspections to be made of the available facilities and infrastructure in the said private hospitals, to verify whether they possess adequate number of qualified doctors, qualified nurses, paramedical staff apart requisite equipment and notify the same.
"This exercise shall be completed within the shortest possible time in view of the grave urgency and rising cases of persons infected by COVID- 19 and deaths caused by it. Only such private hospitals as are approved by the ICMR shall be permitted to treat COVID-19 patients", observed the bench.
The Court was hearing a PIL to declare the action of the State of Telangana and other respondents in not permitting the "private hospitals" and "diagnostic centers" which are equipped with necessary equipment and personnel and willing to conduct diagnostic tests for COVID-19 virus and to admit patients for isolation and treatment of COVID-19 virus as arbitrary, illegal and without power.
The Court further held that it shall be the right of the residents of the State of Telangana to get tested and treatment on payment basis, if they choose to do so, for COVID-19 in any private laboratory or private hospital presently approved by the ICMR or may be approved in future at such rates as may be determined by ICMR or any other competent authority of the Union of India;
The bench noted that initially the Government permitted all private hospitals to deal with COVID-19 cases from March 21 till April 11 but the District Medical and Health Officer, Hyderabad, in his first order of April 11, while permitting the private hospitals to deal with COVID-19 cases introduced a prohibition against them from dealing with ordinary elective procedures and surgeries so that the entire attention could be towards treating the COVID-19 patients even by private hospitals. However subsequently by another order of the same day, the District Medical and Health Officer, Hyderabad canceled the earlier order issued on the same day. The result is that private hospitals were totally prohibited from treating COVID-19 patients.
"No legal basis is indicated in the counter affidavit for the respondents to compel citizen to get tested and treated in only Government hospitals like Gandhi Hospital for treatment", remarked the bench. "Absence of reasons vitiates the later order dt.11.4.2020 passed by District Medical and Health Officer, Hyderabad withdrawing the facility of testing and isolation/treatment in private sector hospitals", it further observed.
The Court iterated that the State cannot incapacitate an individual by restricting his choice particularly when it comes to a disease which affects his life/health or that of his kith and kin- "It is settled law that Art.21 of the Constitution of India confers on the citizens of India a fundamental right to life and personal liberty. Right to health is integral part of the Right to life and is a facet of Art.21"
It proceeded to state that according to the Supreme Court, restrictions on the right to life must satisfy the test of reasonable, just and fair procedure.
Besides, the order reads that the freedom of a citizen to approach any private laboratory and hospital approved by ICMR. "In the instant case the freedom of the citizen of the State to get tested in a laboratory of his choice or get treated in a private hospital of his choice is curtailed by the State without support of any "law", much less a reasonable, fair and just law. It's action is thus patently arbitrary and unreasonable and violates Art.21 of the Constitution of India and is unsustainable", opined the bench.
"The fact that an authority like the ICMR, which is part of the Government of India, Ministry of Health and Family Welfare has thought it fit to permit private laboratories to perform the COVD_19 tests instead of a total prohibition shows that the said procedure followed by the ICMR comes clearly within the principle of just, fair and reasonable procedure under Art.21", said the bench.
Dangerous to suppress figures of infected persons/deaths on account of COVID-19
The court noted that there have been articles in the press that some State Government's figures of the infections/deaths due to COVID-19 are being doubted even by the Union of India forcing it to send teams from Ministry of Health, New Delhi to verify the factual situation on the ground. "These news items cannot be dismissed as false...So the respondents cannot say that if private laboratories are permitted to test, there would be indiscriminate testing", it commented.
"Just as an infected person cannot hide his infection because he may die and also put others at risk, the respondents cannot also hide the COVID-19 infected/dead persons' statistics as early diagnosis and isolation/quarantine would prevent the spread of infection to others", the bench continued to state.
Besides, it was observed that the State is allowing testing as of date of only 'symptomatic' patients suspected of COVID-19 and not 'asymptomatic' patients i.e patients who do not show visible symptoms of the COVID-19 virus. Therefore a person who is 'asymptomatic' cannot get any test in any Government approved laboratory today. If private laboratories approved by ICMR can test such individuals if they so desire and are willing to pay for it, the State cannot object to it.
"Though the actual time required to get results for an RT-PCR test to test a suspect for COVID-19 virus is said to be only about 6 hours, due to large queues of samples in limited authorized laboratories, it would take considerable time ( maybe even a week) for the results to come back. This would cause hardship to citizens", the bench reflected.
Finally, the court alive to the reality that many instances have come to light in the press wherein serious patients who suffered from non-COVID ailments like fractures, heart attack or brain stroke etc., were denied admission in hospitals as they were directed to first get themselves tested for COVID-19.