CONSTITUTIONAL PARADOXES AMIDST THE PANDEMIC – [EDITORIAL]

by Anchal Batheja

Conferring rights through the means of judicial activism is not a very onerous task. The real conundrum arises when individuals on the bench are expected to strike off a balance between two countervailing interests which hold almost equal ground in law and the constitution. This dilemma becomes very pronounced when one looks at the anatomy of Article 21 of the Indian constitution and the shape and form it has acquired as a result of judicial interpretations. The right to life envisaged by Article 21 includes a plethora of rights within its wide amplitude and two of those rights are right to health and right to free consent. However, the practical application and enforcement of these rights become very difficult in cases of health emergencies. The first question that arises is that if doctors owe a duty of care to the patients, what is the extent of that duty? If they have consented to become doctors, do they also wave off their right to life? whether the doctor has a right to deny treatment in such extra-ordinary situations when their own life is in jeopardy. Amidst a major pandemic outbreak, one is also bound to think that whether doctor’s 

However, the dearth of clarity over whose rights will take primacy in a health emergency and to what extent are the doctors inquiry becomes all the more important when the whole world has been gripped by a pandemic and the rights of the ones who get infected have assumed a lot of importance.

RIGHT TO HEALTH –

Article 21 envisages the right to life for all the persons. The apex court in State of Punjab v. M. S. Chawla asserted that the right to life also included the right to health. However, Salmond propounded that for every right, there is a corresponding duty. Which means that if the patients are constitutionally entitled to a healthy life under Article 21, the doctors are constitutionally obligated to provide medical services under the same. This preposition gives rise to a series of questions.

A. Whether the right to life can be enforced against a private individual. This issue came up before a 5 judge bench in October 2018 in the case where a minister had publically shamed a rape victim., the amicus curie Mr Harish Salve had pointed out that the concept of state being the sole deliverer of all public functions was obsolete and the private parties who have forayed into the territory of public functions ought to be made responsible for upholding fundamental rights. If we pay heed to Mr Salve’s observation, then fundamental rights can very well be enforced against doctors as they also perform a public function of providing health services, which was originally vested with the state. however, Mr Salve’s observation does not have any legal authority because the court has still not handed down its verdict in the case and thus, the position of law continues to be murky.

B. Whether the right to health can be enforced against doctors when the enforcement of that right can jeopardise their own right to health? Like, in situations where the patients have an infectious disease and the doctors are at the risk of contracting the infection themselves, can the doctors deny treatment? The bare text of Article 21 does not confer any special status on the patient’s and neither did the supreme court in the M. S Chawla ruling specify that the right to health was only being conferred on the patients. It is not clear if the patients can enforce their right to health at the expense of the doctor’s health. Moreover, the principle of equality before the law is antithetical to the idea of giving primacy to someone’s life and health over others.

It is also to be noted that no life operates in isolation. They are numerous lives inextricably linked to every individual’s life. For doctors, these are the lives of their families. Yes, they are bound to ensure the well-being of their patients but are they also not bound to ensure the well-being of their children, spouses and families. What if they get infected and go on to infect their families? Here can the patient’s right to health be placed above the right to health that is conferred on a doctor’s child or doctor’s spouse?

A possible rebuttal to this can be that the job of doctors is akin to that of army officers. If they can risk their lives for the safety of the citizenry then, why not doctors. In other words, if the common people’s life and security can be given primacy over the army personnel’s life and security then, why not doctors?

In the present context at least, this analogy is fallacious on two grounds. Firstly, it is unreasonable to send unarmed army personnel to the battlefield, thereby absolutely taking away their right to defend themselves against the adversary, which is conferred on them by IPC, armed forces act and has also been re-affirmed by the Supreme Court. Whereas something very analogous to this is happening in the hospitals today, wherein the doctors are being made to work under a severe scarcity of personal protective equipment’s, thereby absolutely taking away their right to defend themselves, against the pandemic. This too is happening, when multiple studies have revealed that the doctors are more prone to contracting coronavirus than anyone else. Secondly, we do not evict and ostracise army personnel for guarding our borders and rather the citizenry views them with a sense of utmost veneration and infect, devotion. Whereas today, doctors and nurses are being ostracised, evicted and stranded on roads due to the fear that they might infect others.

RIGHT TO CONSENT –

Then, there is the issue of consent. The patient’s right to give consent to the treatment has been recognised in law, as it is considered to be the part of their personal autonomy and self-determination under Article 21, but the law is still silent on whether the doctor’s acquiesce to give treatment is material. Further, it is a settled legal principle that doctor-patient relationship is contractual and fiduciary in nature wherein the doctor is bound to act in the best interest of the patient. But, even in fiduciary relationships, the requirement of free consent as per section 13 of the Indian contract act, cannot be disregarded.

A possible rebuttal to this can be that the doctors have voluntarily taken up the profession and the contractual and statutory responsibilities attached to it. The idea of promissory estoppel as per which, one cannot go back on their promise has been firmly settled in law. Thus, their consent to become doctors implies that they consented to treat patients even if, it entailed risk to their own life and they cannot go back on their promise if they have consented at the onset.  They should not have done so if they dreaded the consequences.

But even for promissory estoppel to apply, the consent ought to be free and informed. Moreover, the Medical Council of India guidelines and an umpteen number of judicial precedence emphasize that the patients not only have a right to consent, but also an informed one. Should others including medical students also have this right to informed consent wherein they are warned about the deadliest of risks attached to the profession is another philosophical question. If we assume that they should, the subsequent question would be whether they know about these risks before joining the profession. If at all this question is asked, the answer is not in affirmative.

To buttress this argument, a study found out that before joining the profession, 57% of doctors, felt that there was only a reasonable and foreseeable standard of risk that they would have to deal with while practising. Many said that they realised about the risks inextricably hitched to the profession, later during their education and training. 5% of them also said that they would avoid taking up the profession, had they known about perils. The situation is no different in India because firstly, there is a lack of proper career counselling and nearly 92% of schools in India do not provide any career-related advice to the students. Secondly, many of the students take up medical sciences out of peer pressure or parental pressure. Thirdly, there is no special training to equip the students to deal with medical emergencies like a widespread pandemic which has the potential to affect their own life as well. Fourthly, they do not receive any counselling or guidance to uproot their excessive anxieties, in such extra-ordinary emergencies. So, it is safe to conclude that many of them are not aware of what lies in store for them and their consent to become doctors is not fully informed.

The above discussion is not to suggest that doctors cannot deny treatment at all. As per the MCI regulations, the denial of treatment is permitted when the patient turns down the treatment advised by the doctor, when they are already under the care of some other doctor or when the case is beyond the sphere of the doctor’s expertise. Likewise in the USA and elsewhere, the doctors can deny treatments like abortion and assistive suicide, if they conscientiously feel that it violates their religious beliefs.

CONCLUDING REMARKS –

There are no intelligible constitutional, legal or philosophical answers as to whether the doctors can deny treatment in the case of infectious diseases. Yes, the doctors have a moral and legal duty to serve to the needs of the patients, but what is the extent of this duty? We can expect doctors to administer an injection to a patient when they need one. But can we expect doctors to give their own kidney and donate it to their patients if they need one? Do doctors wave off their right to life after they take the profession?

While we grapple with questions that can be resolved by jurists, academicians and lawmakers in the longer run, India needs a quick policy plan to protect the health providers by ensuring that they get adept training and counselling to deal with such emergencies. They need to be supplied with personal gears, they need to be protected against harassment and they need to be respected for the kind of vital work they are doing today. After all, doctors are also humans.

Views are personal.

ABOUT THE AUTHOR

Anchal Batheja is currently pursuing law from National Law School of India University, Bangalore and is a Founding Editor at ELS Review.

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