COVID-It Is A Pity That People Are Dying Due to Lack of Oxygen, There Is No Reason Why Govt. Cannot Invest To Set Up PSA Oxygen Plants In Each Districts: HC Pulls up MP Govt.

Reiterating the earlier directions issued to the State Government for ensuring regular continuous supply of oxygen to all, the Madhya Pradesh High Court on Friday asked the State to "re-look its distribution policy" for Remdesivir injections with all the stakeholders in order to make it available to common man at a reasonable price, and not just to patients on oxygen support.

"Whether or not a particular Covid-19 patient is required to be administered Remdesivir as medicine, should be left to the discretion of the treating doctors and ought not to be decided by the executive fiat. We see no justification on the insistence of providing Remdesivir to only such patients who are on oxygen support, particularly when oxygen, as a commodity, itself has become so scarce. There appears to be no logic behind this policy." observed a division bench comprising of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan.

On Availability of Remdesivir and Issue of Black Marketing

During the course of hearing, Naman Nagrath, amicus curiae in the matter apprised the Court about the issue of availability of Remdesivir medicine due to black marketing and exorbitant price at which it is being sold in the State.

Observing that the State Government has taken no steps in order to curb such malpractice, the Bench noted thus:

"Most of the private hospitals are requiring the Covid-19 patients to obtain this medicine on their own. The patients requiring admission are being made to shuttle from one hospital to another in view of ambiguity regarding availability of beds. The State Government has to pay urgent attention to strengthen the healthcare facilities in the rural areas, so that citizens do not suffer adverse consequence. Despite direction by this Court for not charging more than the rates prescribed for treatment, the private hospitals are taking exorbitant charges."

Furthermore, the Court also observed that it should be for the treating doctor to decide which patient has to be administered the Remdesivir injection and once prescribed, it is the duty of the State to ensure that it becomes available at the earliest.

It is pertinent to note that the Court had directed the State to ensure that patients or attendants are not exploited by exorbitant prices and that it would regulate and ensure continuous supply of Remdesivir, not only to the Government Hospitals but also to the Private Hospitals/Nursing Homes.

The Advocate General appearing for the State apprised the Court that an interim allocation of Remdesivir for 10 days from 21st to 30th April has been ensured with supplies from seven domestic manufacturers. Moreover, it was submitted that the State has been allocated 95000 vials of Remdesivir for consumption before 30.04.2021, out of which, only 45,000 vials were retained for utilization in the Government Hospitals and allotted 50,000 to be supplied to the private hospitals but with a condition that they shall ensure equitable sale/ availability of drug for treatment of admitted Covid-19 patients in private hospitals based on the number of Covid-19 inpatients admitted in Covid ICU/HDU/Oxygen supported beds.

It was further submitted by Additional Chief Secretary of State Directorate of Health Services that while only 5 to 6% of covid patients in Government Hospitals were being prescribed the said injection, the same was being advised by private hospitals indiscriminately thereby increasing the demand.

Finding no logic behind the policy of the State on providing Remdesivir to only patients with oxygen support, the Court was of the view thus:

"..we find that there is tremendous amount of dissatisfaction not only amongst the Private Hospitals and Nursing Homes with regard to justness of policy of distribution of this drug but also there is lot of hue and cry amongst the patients and their attendants/family members with regard to the policy of distribution of Remdesivir injections. Resultantly black-marketeers are flourishing. This sometimes results into very chaotic conditions in such hospitals giving rise to law and order situation. We do not want to go into the details of all these issues but considering serious question marks put on the efficacy of the policy adopted in this behalf, the State Government ought to have re-look at its distribution policy so as to rationalize the same in consultation with all the stakeholders, in such a way that the medicine becomes available to common man at reasonable price."

On Dearth of Oxygen Supply

During the course of hearing, the Court was apprised by the amicus curiae that despite exhaustive directions of the Court to ensure continuous oxygen supply, there were about 60 deaths in the State due to the lack of oxygen owing to the failure of the State.

The Court was further informed that out of 8 Pressure Swing Adsorption (PSA) Oxygen Plants approved by the Central Government under PM Cares Fund to the State, only five Plants have been installed and they too are also functional with less than half capacity.

"The State of Madhya Pradesh has got 52 districts in which District Hospitals are situated. There is no reason why it cannot invest an amount of Rs.50 Crore so as to set up one PSA Oxygen Plants in each of them. There is no liquid oxygen manufacturing plant in the entire State. Since there is possibility of third wave of Covid-19 in the coming months, it is the duty of the State to take steps to ensure that such plants are set up in the State." The Court observed at the outset.

Observing that the situation on ground was "totally different than what was portrayed by the State in Action report", the Court also took serious note of newspaper reports showing various deaths due to the lack of supply of oxygen and observed thus:

"Even the State has not made any serious effort to dispute the veracity of the alleged deaths of several persons in the hospitals due to non-availability of oxygen. Death of citizens, so large in number, is really heart-rending. It is a pity that people are dying in the hospitals due to lack of oxygen."

Noting that the Right to Life is meaningless unless accompanied by guarantee of "certain concomitant rights including, but not limited to, the right of health", the Court held that the right to health can be secured to the citizens only if the State provides adequate measures for their well being, treatment, healthcare and takes their care by protecting them from calamities like Coronavirus.

"Health has its own prerequisites of social justice and equality and that it should be accessible to all. It includes the ability to obtain all kind of healthcare services including prevention, diagnosis, treatment and management of health disorders, diseases, illness and other health impacting conditions." The Court observed.

Furthermore, highlighting the importance of oxygen for human existence, the Court also went ahead to observe thus:

"At such crucial stage, survival of citizen can be ensured by supply of oxygen from external source till the time his lungs with the use of approved medication can be made to regain their normal functioning. The right to life enshrined under Article 21 of the Constitution of India would be meaningless in the present situation without the continuous availability of oxygen. Here comes the role of State as a Constitutional obligation to provide for not only the life saving drugs but also the oxygen."

Furthermore, the Court also opined thus:

"This Court impresses upon all the State Governments and through them, their Police Authorities and the Transport Authorities, to provide green corridors to the Tankers carrying Liquid Medical Oxygen involving inter-state movement, at par with ambulances, so that the oxygen can be timely delivered at the respective destinations, to save the precious human lives in this crucial period."

Observing that the State is making all its efforts to continuously procure oxygen and supply it in the hospitals, the Court also observed that such procurement of oxygen should be so regular and punctual, that all hospitals, be it Government or Private, continue to have such quantity of oxygen, as may be necessary to maintain the required pressure of oxygen supply to all the patients under their treatment so that no patient loses his life due to shortage or non-supply of oxygen.

"We therefore, reiterate our earlier directions which required the State Government to ensure regular and continuous supply of oxygen to all the citizens admitted anywhere either in Government or Private facilities." The Court directed.

Furthermore, the Court also went ahead to observe that the patients having BPL cards under Deendayal Antyodaya Upchar Yojana, Cards under Ayushman Bharat Yojana and those covered under the CGHS were neither being given admissions nor were being provided any treatment by private hostpitals or nursing homes. The Court also opined that the State was not taking effective steps s for disposal of the medical waste, which is being dumped at open place in all the major cities of the State.

"The helpline number provided by the Government is hardly helpful to the people seeking to know the position of availability of beds in the private hospitals. The private hospitals are refusing to admit the ordinary patients and honouring only those patients who pay the hefty amount in advance. The State Government should regulate admission of the Coronavirus patients in Government hospitals as well as private hospitals as per modal developed by the Government of NCR Delhi." The Court observed.

Reiterating the earlier directions issued, the Court directed that those hospitals which are approved for providing cashless treatment under government schemes "shall not refuse to provide treatment to concerned patients and if any complaint in that behalf is received, the State Government shall take appropriate action against such private Hospitals/Nursing Homes."

Posting the matter for further hearing on May 6, the Court directed the State and its authorities to make endeavors for carrying out directions issued by the Court in the earlier order dated 19th April.

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