Private Doctors Need Not Await Govt Approval For COVID-19 Tests On Categories Of Patients Mentioned In ICMR Guidelines : Gujarat HC [Read Order]

The Gujarat High Court on Friday held that private doctors and hospitals need not wait for approval from the government authorities for carrying out COVID-19 tests on those categories of patients mentioned in the testing guidelines laid down by the Indian Council of Medical Research (ICMR).

A division bench of Chief Justice Vikram Nath and Justice J B Pardiwala noted that the requirement of prior approval for COVID-19 testing by private doctors and hospitals was delaying the process.

In such cases, the treating doctors only need to send an intimation regarding the test to the concerned authorities. The Court has not interfered with the requirement of government approval for private hospitals to do COVID-19 tests on patients not falling within the categories mentioned in ICMR. However, the Court ordered that such approval should be communicated at the earliest, in any case, within 24 hours.

As stated by the Court in paragraph 36 of the order :

"we have examined the guidelines of the ICMR regarding testing as also the report of the three members committee of the State Government which we have reproduced above in para ­ 25. According to the said report, certain categories of patients are enumerated where testing should be done. Those categories of patients, as referred to above, in our opinion, and for the reasons recorded above, would not be insisted for an approval from the concerned Superintendent of the GMERS, Ahmedabad or the DHO for other districts, but the COVID­19 testing should be done forthwith without any delay and only intimation of such patients may be forwarded to the concerned authorities by the treating consultants.

For rest of the patients (not covered by the above specified categories), we direct that the COVID testing by the treating Physician or Surgeon would require an approval to be obtained, but, at the same time, we direct and make it very clear that such approval should be granted at the earliest and in any case, within 24 hours. This time line to be strictly adhered to". 

The Court passed the direction considering a petition filed by Ahmedabad Medical Association (AMA) and Dr. Malay Devendra Patel who challenged a Gujarat government order prohibiting private doctors and hospitals from conducting COVID-19 tests without getting approval from designated health officials. 

 It was argued that if any patient is to be treated for any other disease or ailment or take a case where any surgery is to be performed, the Doctor would advise to get the COVID­19 test report. It is necessary because the treating doctor needs to be aware of all the conditions, infection which the patient may be suffering. The doctor would not like to take any chance before he performs the surgery.

They submitted that certain categories of patients requiring urgent surgeries undergoing critical treatment relating to Hemodialysis, other emergency surgeries including delivery of pregnant women which cannot await the approval of the Superintendent of the GMERS, Ahmedabad or the DHO as it takes two to four days. If the approval is awaited and only then, testing is conducted, it could result into disastrous situation for the patients as also the consulting doctor and paramedical staff, submitted the doctors.

Agreeing with the concerns expressed by the Association, the Court observed :

"We fail to understand that in the circumstances highlighted above, why the concerned doctor has to seek the permission of the DHO or CDHO. Once the doctor prescribes the COVID­19 test for the purpose of taking due care before the surgery is performed or before any particular treatment commences, then why permission is to be obtained from the DHO CDHO. In this regard, we seriously called upon the learned Advocate General to explain us the rationale behind such a policy. The disturbing feature of this policy is that the DHO or the CDHO hardly finds time to grant the necessary permission. It takes two to four days before the permission is accorded and the test is performed. In a given case, this delay may prove to be fatal. In a given case, if such delay proves to be fatal, then who would be responsible".

The Court also referred to the recent judgment of the Telangana High Court which quashed the Government Order restricting citizens from getting COVID-19 tests from private laboratories, even if they have requisite approval.

Last week, the Court had stressed the need for increasing COVID-19 tests, discarding the submission of the Advocate General that more tests would mean at least 70% of the population testing positive, leading to fear psychosis.

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