Kerala High Court
Adv. Sabu P. Joseph vs State Of Kerala Represented By The ... on 10 May, 2021
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
MONDAY, THE 10TH DAY OF MAY 2021 / 20TH VAISAKHA, 1943
WP(C).No.10659 OF 2021(S)
PETITIONER:
ADV. SABU P. JOSEPH, AGED 46 YEARS,
SON OF T. A. JOSEPH, VICE-CHAIRMAN -
LEGAL CELL, HUMAN RIGHTS FORUM,
REG. NO. 186/IV/19, REGISTERED OFFICE AT
B.NO. XX-638, CLASSIC TOWER, A.M. ROAD,
PERUMBAVOOR, 683 542, ERNAKULAM DISTRICT.
BY ADVS.SRI.C.N.SREEKUMAR
SMT.MANJU PAUL
SHRI.SURESHKUMAR.C
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE CHIEF
SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM 695 001.
2 DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF
HEALTH SERVICES, GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM 695 035.
3 INDIAN COUNCIL FOR MEDICAL RESEARCH,
RAMALINGASWAMI BHAVAN, P.O. BOX NO. 4911,
ANSARI NAGAR, NEW DELHI 110029, REPRESENTED
BY ITS SECRETARY AND DIRECTOR GENERAL.
4 UNION OF INDIA, REPRESENTED BY ITS SECRETARY,
HEALTH AND FAMILY WELFARE, NIRMAN BAVAN,
NEW DELHI 110011.
ADDL.5 KERALA PRIVATE HOSPITALS ASSOCIATION
HAVING ITS REGISTERED OFFICE AT KPHA HEAD
QUARTERS, ASHIRBHAVAN ROAD, KACHERIPPADY,
ERNAKULAM,KOCHI 682018,REPRESENTED BY ITS
PRESIDENT,HUSSAIN KOYA THANGAL.
WPC 10659/21 2
ADDL.6 STATE HEALTH AGENCY REPRESENTED BY EXECUTIVE
DIRECTOR,ARTECH MEENAKSHI PLAZA,5TH AND 8TH
FLOOR,OPP.GOVT.WOMEN AND CHILD HOSPITAL,
THYCAUD,THIRUVANANTHAPURAM-695014
ADDL.7 NATIONAL HEALTH MISSION REPRESENTED BY THE
EXECUTIVE DIRECTOR,NRHM BUILDING,GENERAL
HOSPITAL,DIRECTORATE OF HEALTH SERVICES,JAI
VIHAR,KANNUKUZHY,THIRUVANANTHAPURAM-695035
ADDL.8 KERALA MEDICAL SERVICES CORPORATION LIMITED
REPRESENTED BY THE EXECUTIVE DIRECTOR,CV RAMAN
PILLAI ROAD,NEAR WOMEN AND CHILDREN
HOSPITAL,THYCAUD,THIRUVANANTHAPURAM-695014
ADDL.9 THE INDIAN MEDICAL ASSOCIATION(IMA) KERALA
REPRESENTED BY ITS PRESIDENT,HEADQUARTERS,
ANAYARA P.O,THIRUVANANTHAPURAM-695029
ADDL.10 QUALIFIEDPRIVATE MEDICAL PRACTITIONERS
ASSOCIATION REPRESENTED BY ITS PRESIDENT,
FLOOR V-E/F,VALLAMATTAM ESTATE, RAVIPURAM,
M.G.ROAD, KOCHI-682015
ADDL.11 CATHOLICHEALTH ASSOCIATION OF INDIA
REPRESENTED BY THE EXECUTIVE DIRECTOR,
PASTORAL ORIENTATION CENTRE,CIVIL LINE
ROAD,PALARIVATTOM,KOCHI-682028
ADDL R5 IS IMPLEADED VIDE ORDER DATED 04/05/2021 IN
IA 3/21 AND ADDL. R6 TO R11 ARE SUO MOTU IMPLEADED
VIDE ORDER DATED 04/05/2021 IN WPC 10659/2021
ADDL.12 MUSLIMEDUCATIONAL SOCIETY, BANK ROAD,
CALICUT REPRESENTED BY ITS PRESIDENT
Dr.P.A.FAZAL GAFOOR
IMPLEADED AS PER ORDER DATED 10/05/2021 IN IA 6/2021
R3& R4 BY SRI.P.VIJAYAKUMAR, ASG
R5 BY ADV. SRI.K.RAMAKUMAR (SR.)
R5 BY ADV. SRI.T.RAMPRASAD UNNI
R5 BY ADV. SRI.K.ANAND
R9 BY ADV. DR.S.GOPAKUMARAN NAIR (SR.)
R9 BY ADV. SRI.SOORAJ ELANJICKAL
WPC 10659/21 3
R9 BY ADV. SRI.K.ARJUN VENUGOPAL
R9 BY ADV. SHRI.ASWIN KUMAR M J
R1 & R2 BY ADV.SRI.K.V.SOHAN, STATE ATTORNEY
R6 TO R8 BY ADV.SRI.M.AJAY
R11 BY ADV.SRI.JIJO PAUL KALLOOKKARAN
R12 BY SRI.BABU KARUKAPPADATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
10.05.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC 10659/21 4
JUDGMENT
Dated this the 10th day of May 2021
The COVID-19 pandemic has poignantly demonstrated that
health is not the business of a few - all must come together.
2. With the crisis expected to deepen before it improves,
there are major foundational dimensions to health system and
people's access to it.
3. The pandemic brings into focus two truths: First, health
for all without unbearable financial burden is imperative; and Second,
strong health systems to respond to evolving and continuing health
crisis is unexpendable.
4. The pandemic is a wake up call for the Government, that it
carries primary responsibility of its citizens' health as part of social
contract, particularly that of the most vulnerable and marginalized
sections.
5. The Government must, meaningfully and transparently,
engage the whole of the society in their responses; especially because
myriad issues are thrown up by the COVID scenario.
6. The need for a systematic approach to the complex
challenges and for better understanding the relationship between
population health and its economic consequences have been
recognised as the basis towards sustainable solutions.
7. The 'second wave' of the pandemic brings back renewed
focus on the content to right to life as the most acme component of
Article 21, read with Article 47 of the Constitution of India.
8. In Paschim Banga Khet Mazdoorsamity & Ors. v.
State of West Bengal & Anr. ((1996) 4 SCC 37), the Hon'ble
Supreme Court explicated thus in paragraphs 9 and 16 thereof:
"9. The Constitution envisages the establishment of a welfare
State at the federal level as well as at the state level. In a welfare
State the primary duty of the Government is to secure the welfare
of the people. Providing adequate medical facilities for the people
is an essential part of the obligations under taken by the
Government in the welfare State. The Government discharges this
obligation by running hospitals and health centres which provide
medical care to the person seeking to avail of those facilities.
Article 21 imposes an obligation on the State to safeguard the
right to life of every person. Preservation of human life is thus of
paramount importance. The government hospitals run by the State
and the medical officers employed therein are duty bound to
extend medical assistance for preserving human life. Failure on the
part of a government hospital to provide timely medical treatment
to a person in need of such treatment results in violation of his
right to life guaranteed under Article 21.
16. It is no doubt true that financial resources are needed for
providing these facilities. But at the same time it cannot be
ignored that it is the constitutional obligation of the State to
provide adequate medical services to the people. Whatever is
necessary for this purpose has to be done. In the context of the
constitutional obligation to provide free legal aid to a poor accused
this Court has held that the State cannot avoid its constitutional
obligation in that regard on account of financial constraints. [See :
Khatri (II) v. State of Bihar, 1981 (1) SCC 627 at p. 631]. The said
observations would apply with equal, if not greater, force in the
matter of discharge of constitutional obligation of the State to
provide medical aid to preserve human life. In the matter of
allocation of funds for medical services the said constitutional
obligation of the State has to be kept in view."
9. Internationally, there can be little cavil that the right to life
has been recognised as the most crucial element of meaningful life
and its expanse and depth has found reflection in various Covenants
and Instruments: namely, The Universal Declaration of Human Rights
(1948); The International Covenant on Economic, Social and Cultural
Rights (1966); The International Covenant on the Elimination of all
Forms of Racial Discrimination (1965); The Convention on the Rights
of Persons with Disabilities (2006) and others.
10. The soul of the afore, especially in the time of a global
pandemic, is the right of a citizen to: (a) Non discriminatory access to
health service; (b) Adequate Medical Treatment; and (c) Affordable
treatment.
11. The General Comment No.14, E/C.12/2000/4 dated
11.08.2000 of the COMMITTEE ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS, Twenty second Edition, Geneva, 25 April - 12
May 2000, Agenda No.3, provides an illuminating essay on the Right
to Health as follows:
"The right to health in all its forms and at all levels contains
the following interrelated and essential elements, the precise
application of which will depend on the conditions prevailing in
a particular State party:
(a) Availability. Functioning public health and health-care
facilities, goods and services, as well as programmes, have to
be available in sufficient quantity within the State party. The
precise nature of the facilities, goods and services will vary
depending on numerous factors, including the State party's
developmental level. They will include, however, the underlying
determinants of health, such as safe and potable drinking
water and adequate sanitation facilities, hospitals, clinics and
other health-related buildings, trained medical and
professional personnel receiving domestically competitive
salaries, and essential drugs, as defined by the WHO Action
Programme on Essential Drugs.
(b) Accessibility. Health facilities, goods and services6 have
to be accessible to everyone without discrimination, within the
jurisdiction of the State party. Accessibility has four
overlapping dimensions:
(i) Non-discrimination: health facilities, goods and
services must be accessible to all, especially the most
vulnerable or marginalized sections of the population, in
law and in fact, without discrimination on any of the
prohibited grounds.
(ii) Physical accessibility: health facilities, goods and
services must be within safe physical reach for all sections
of the population, especially vulnerable or marginalized
groups, such as ethnic minorities and indigenous
populations, women, children, adolescents, older persons,
persons with disabilities and persons with HIV/AIDS.
Accessibility also implies that medical services and
underlying determinants of health, such as safe and
potable water and adequate sanitation facilities, are
within safe physical reach, including in rural areas.
Accessibility further includes adequate access to buildings
for persons with disabilities.
(iii) Economic accessibility (affordability): health
facilities, goods and services must be affordable for all.
Payment for health-care services, as well as services
related to the underlying determinants of health, has to
be based on the principle of equity, ensuring that these
services, whether privately or publicly provided, are
affordable for all, including socially disadvantaged
groups. Equity demands that poorer households should
not be disproportionately burdened with health expenses
as compared to richer households.
(iv) Information accessibility: accessibility includes the
right to seek, receive and impart information and ideas
concerning health issues. However, accessibility of
information should not impair the right to have personal
health data treated with confidentiality.
(c) Acceptability. All health facilities, goods and services must be
respectful of medical ethics and culturally appropriate, i.e.
respectful of the culture of individuals, minorities, peoples and
communities, sensitive to gender and life-cycle requirements, as
well as being designed to respect confidentiality and improve the
health status of those concerned.
(d) Quality. As well as being culturally acceptable, health
facilities, goods and services must also be scientifically and
medically appropriate and of good quality. This requires, inter alia,
skilled medical personnel, scientifically approved and unexpired
drugs and hospital equipment, safe and potable water, and
adequate sanitation."
12. With all this said, the content of right to health is
different in its very concept and tenor during a public health
emergency than it is in a non-pandemic scenario.
13. If the citizens and patient rights discourses cannot pierce
the argument that only people who can afford, may go to better
hospitals, then such rights become futile when one needs it most.
14. The leit motif of this case is not adversarialism but
inclusiveness.
15. The petitioner, in public interest, seeks that all hospitals
in Kerala - in the public or private sector - be directed to provide
affordable, if not free, treatment to all citizens without discrimination.
16. We have heard Sri.C.N.Sreekumar, learned counsel for
the petitioner; Sri.K.V.Sohan, learned State Attorney appearing for
the Government of Kerala and its functionaries; Sri.P.Vijayakumar,
learned Assistant Solicitor General, appearing for the Union of India;
Sri.K.Ramakumar, learned Senior Counsel, instructed by Sri.K.Anand,
learned counsel appearing for the additional fifth respondent;
Dr.S.Gopakumaran Nair, learned Senior Counsel, instructed by
Sri.Sooraj T.Elenjikal, learned counsel appearing for the additional
ninth respondent - Indian Medical Association (IMA); Sri.M.Ajay,
learned Standing Counsel appearing for additional respondents 6 to
8; Sri.Jijo Paul Kallookkaran, learned counsel appearing for the
additional eleventh respondent; and Sri.Babu Karukappadath, learned
counsel appearing for the additional twelfth respondent. Since this is
a matter of public concern, we have also heard Sri.Mohammed Shah,
Sri.Ajith Joy, Sri.V.Philip Mathews, Sri.Dinesh R.Shenoy,
Sri.M.R.Hariraj and Sri.Achuth Kailas, learned counsel appearing for
various persons/entities who intend to come on record, but could not
on account of the lock-down in force in the State of Kerala as on
today.
17. The petitioner projects various concerns, the main among
them being the despondency faced by a citizen when he is denied
health care assistance for want of sufficient hospital beds and
infrastructure. He points out that the number of active cases in Kerala
is insidiously climbing every day and that admission and care in a
Government Hospital/Facility is increasingly becoming difficult. He
continued that in such a situation, a COVID-19 patient, who is in need
of emergent care would have no choice between a Government
facility and a private one and hence would be compelled to seek
admission in the latter, thus exposing him/her to unimaginable
financial burden. He then argued that in the global pandemic scenario
it would be grossly unethical to let private health facilities charge as
they please and thus prays that this writ petition be allowed, since
otherwise it will lead to unconscionable profiteering.
18. We must say with great amount of appreciation that the
response of the State to the afore apprehensions of the petitioner was
to inform us that a Government Order has been issued, bearing No.
G.O.(Rt)1066/2021/H&FWD dated 10.05.2021, whereby, the cost of
the treatment for COVID-19 has been rationalised.
19. Sri.K.V.Sohan, learned State Attorney, read extensively
from the aforementioned order and informed us that 50% of all
hospital beds in the Government, Private (including Private Medical
Colleges), Co-operative and ESI Hospitals, has been ordered to be
exclusively reserved for treatment of COVID-19 patients requiring
hospitlisation. He then showed us that the order also notifies the
rates for regulating the prices to be charged by the private hospitals
and nursing homes in providing quality care 'to directly walk-in'
COVID-19 patients. He explained that the rates mentioned in this
order are applicable to all citizens who seek medical assistance in a
private hospital/facility, other than the beneficiaries under the
Karunya Arogya Suraksha Padhathi (KASP) and 'Government referred
patients'. He submitted that there are certain exclusions mentioned in
the rates specified in the order and that these will be governed by the
Maximum Retail Price (MRP) as notified from time to time by the
manufacturers or the Governmental agencies; and that any
notification in future to be issued by the Union of India or the State of
Kerala with respect to any drug/consumables/diagnostics will also be
made applicable to the rates mentioned in this order in public
interest.
20. Sri.K.V.Sohan further submitted that the rate for the
Reverse Transcription Polymerase Chain Reaction (RTPCR) test will
be as regulated by the Government, through order dated 30.04.2021
and that other tests will be governed by order dated 10.05.2021.
21. After saying as afore, the learned State Attorney
addressed one of the major concerns of the petitioner, with respect to
the consumables, including PPE kit, the burden of which will have to
be borne by a patient. He said that as per the new Government Order,
the hospitals can only charge two PPE kits for a General Ward/Room
and five for an Intensive Care Unit (ICU) bed per day and that this
has been agreed to by the various Associations of private hospitals.
He added to this by saying that the rates to be charged for the PPE
kits shall not exceed the MRP declared by the manufacturer or the
rates to be fixed by the Government from time to time. Sri.Sohan
closed his submissions by showing us that specified Grievance
Redressal System has been incorporated in the new order and that
any violation of the terms of the said Order by any private hospital
will be visited with penal consequences, including fine upto ten times
of the rates mentioned therein.
22. Sri.K.Ramakumar, learned Senior Counsel, appearing for
the fifth respondent, submitted that a counter affidavit has been
placed on record, wherein, several suggestions have been made by
his client, but conceded that these have been brought to the notice of
the Government. The learned Senior Counsel submitted that there are
several niggling concerns in the private sector, including
infrastructural costs, as also the large financial outlay required for
capital improvement, electricity, water charges and such other and,
therefore, that the rates now notified by the Government in the new
Order dated 10.05.2021 may not be sufficient or practicable.
However, to a pointed question from this Court, the learned Senior
Counsel submitted that his clients are willing to allow the new
Government Order operate for a few days, to await any issues that
may present can come out in the open, which can then be allayed or
rectified by the competent Authorities or by this Court at the relevant
time. The learned Senior Counsel concluded his submissions by
praying that his clients be given an opportunity to approach the
Government to place before them all their concerns with respect to
the rates mentioned in the new Government Order and requested that
this Court direct them to consider the same within a time frame.
23. Dr.S.Gopakumaran Nair, learned Senior Counsel,
appearing for the IMA, submitted that counter pleadings have been
filed explaining the nuances of the Pricing Policy required to be borne
in mind for the private sector and argued that standardized
regulatory rates may not be feasible in all cases. He, however,
conceded that since the Government has come out with a new order
as mentioned above, it must certainly be put to operation for a few
days to ascertain its efficacy and worth in the best interests of all the
stake holders.
24. Sri.Mohammed Shah, Sri.Ajith Joy, Sri.V.Philip Mathews
and M.R.Hariraj, learned counsel, brought to our notice the apodictic
issues faced by the COVID-19 patients. Sri.V.Philip Mathews
requested that Government be directed to regulate the cost of drugs,
asserting that the MRP does not always reflect the true price. He
impressed upon us that most of the hospitals, if not all, buy drugs and
consumables much below the MRP and hence, if they are allowed to
charge the same on the patients, they would still obtain large profits.
25. Sri.Mohammed Shah and Sri.Ajith Joy drew us to the
travails of an ordinary citizen who approaches private hospitals for
treatment, saying that the costs are prohibitive and very often unable
to be honoured. Sri.M.R.Hariraj submitted that he is appearing for an
Association by name 'Justice Brigade' and said that there is over all
satisfaction with the new Government Order, but voiced two specific
apprehensions. For the first, he submitted that appointment of the
District Medical Officer (DMO) and the Grievance Officer at the first
instance may not be feasible, since during the pandemic times they
may be busy with other imperative duties. For the second, he pointed
out that there are various patients who have already suffered large
and unconscionable bills and prayed that they be given an opportunity
of approaching the grievance mechanisms appropriately under the
sanction of the Government Order dated 10.05.2021 and the
provisions of the Kerala Clinical Establishments (Registration and
Regulation) Act 2018 and its Rules.
26. Sri.Babu Karukappadath, learned counsel appearing for
the Muslim Educational Society and Sri.Jijo Paul Kallookaran,
appearing for the Catholic Hospitals Association of India, made their
submissions in support of the Government Order now issued and said
that their member hospitals will fully abide by the rates fixed therein.
Sri.Jijo Paul Kallookaran, however, requested that Government be
directed to pay the members of his client Association the amounts due
to them under the KASP at the earliest, pleading that these rates are
already subsidized and any further delay in payment of the same,
would stifle their smooth functioning.
27. Sri.Babu Karukapadath then requested that, even though
his client accepts the Government Order dated 10.05.2021 in its
entirety, liberty may be reserved to them to bring to the notice of this
Court or the competent Authority of the Government, if any further
modifications are required to the same. He said that he is making this
submission only because, once the order is operated, it would then
reveal whether any problems or issues would require to be rectified in
future.
28. The contentions of all the parties being so recorded, we
have examined the order of the Government dated 10.05.2021 very
closely.
29. We must say upfront that we are more than pleased with
the Government Order, since it provides specific mechanisms for
grievance redressal and unequivocally fixes the ambit of the tariff that
can be charged by the hospitals/nursing homes in the private sector.
For clarity and complete reading, we deem it apposite to extract the
rates specified in the new Government Order as under:
Bed Rate in Rate in Inclusions Exclusion
Category INR per INR per
day day
(Non- (NABH)
NABH
a. Registration charges
General WARD Rs.2645 Rs.2910 b. Bed Charges
c. Nursing and Boarding Charges
d. Surgeons, Anesthetists, Medical a. High-End
Practitioner, Consultant Charges Investigations*
HDU e. Anesthesia, Blood Transfusions, like C.T. Chest/
Rs.3795 Rs.4175 Oxygen HRCT Chest
f. medicines and Drugs
g. Pathology and radiology tests:
Medical procedures include essential
Radiological imaging and diagnostic b. PPE Kits
ICU tests such as X-ray, USG, Hematology,
Rs.7800 Rs.8580 pathology etc.
h. Pre and Post Hospitalization c. Costly
expenses: Expenses incurred for Medications like
consultation, diagnostic tests and
medicines before admission of the i. Remdesivir
ICU WITH patient in the same hospital and cost of ii. Tocilizumab
VENTILATOR Rs.13800 Rs.15180 diagnostic tests and medication up to
15 days after discharge from the
hospital for the same ailment.
30. We find the afore rates to be very reasonable, because it
includes almost all the components of basic hospitalization, including
nursing and doctors' charges, bed charges and essential medical
expenses. The exclusions provided therein are justified because, the
cost of high-end investigations like C.T.Chest/HRCT Chest and
medicines like Remdesiver and Tocilizumab are certainly ones that
will have to be borne by the patients on actuals. The order further
makes it clear that these medicines and tests can be administered and
done by the hospitals only on the actual cost incurred and what is
more relevant is that consumables and PPE kits have been allowed to
be charged only on MRP (which can only mean that the price at which
they procure it) and that too with a cap of two per day for a General
Ward and five in an ICU ward.
31. That said, we must also record our great appreciation for
the order because, for the first time, it makes the Kerala Clinical
Establishments (Registration and Regulation) Act, 2018 ('the Act' for
short), applicable as far as COVID-19 treatment is concerned, making
it indubitable that private hospitals require to abide by its provisions,
particularly, Section 39 read with Rule 19 of the Kerala Clinical
Establishments (Registration and Regulation) Rules, 2018
(hereinafter referred to as the 'Rules'). The conjoint effect of the Act
and the Rules is that the hospitals will have to now publish the rates
of their services, as required under Section 39 of the Act and Rule 19
of the Rules and any violation of the same will visit them with penal
consequences mentioned therein.
32. At this time, we also deem it necessary that the rates of
the drugs administered in the hospitals be published by them under
the mandate of the Drugs (Prices Control) Order, 2013, because, as is
evident from the said Order, any violation of it would invite
prosecution under the Essential Commodities Act, as also under
Section 149 of the Code of Criminal Procedure. Even though
Government Order dated 10.05.2021 does not mention this, we feel
that, through our order, this provision be also made applicable.
33. As we have already said, Government Order dated
10.05.2021 covers the field almost entirely and we commend the
Government for the manner in which it has approached the situation.
However, there are few aspects, which we had mentioned to the
learned State Attorney when this matter was heard earlier, including
as to the establishment of a Toll Free number for the entire State, to
have access to the facility for a citizen in the case of an emergency; as
also the appointment of Sectoral Magistrates to oversee private
hospitals. To this, Sri.K.V.Sohan, learned State Attorney, submitted
that Government is considering a Toll Free number and that 'Incident
Commanders' have already been appointed to oversee the treatment
facilities in each private hospital providing COVID-19 treatment under
the provisions of the Disaster Management Act. We certainly find this
to be satisfactory and do not deem it necessary to issue any further
orders on that aspect.
34. We had also earlier suggested that Government must
take over unused hospitals, which was responded to by Sri.Sohan
saying that this is also in the contemplation of the Government and
necessary action in this regard will be taken.
35. The sole remaining concern in our mind is with respect to
the First Line Treatment Centres (FLTCs) for COVID-19, run and
operated by private hospitals or agencies, since we see that
Government Order dated 10.05.2021 does not specifically take this
into account. However, we can always draw support from the tariff
extracted above, because an FLTC generally has to provide only the
facilities and requisites of a General Ward, which is covered by the
said order. We must say that this suggestion of ours has been
accepted by all the learned counsel at the Bar and in particular by the
learned State Attorney, who submitted that even though FLTCs have
not been specifically brought under the ambit of the new order, he
would welcome fixing of rates applicable to General Ward in such
centres also.
36. The most important concerns and issues being so taken
care of, during the course of discussion and interaction at the Bar, a
doubt arose in our mind as to how a citizen below the poverty line or
a person who is unable to even afford the rates shown in the
Government Order dated 10.05.2021, would be able to cope, if he/she
is forced to go to a private hospital in case of an emergency.
Sri.M.Ajay, learned counsel appearing for respondents 6 to 8 and the
learned State Attorney submitted that in such scenario an out-of-the-
box thought is necessary because, normally, citizens below the
poverty line or who cannot afford private hospitals would only route
their request for hospitalisation through the District Programme
Monitoring and Support Unit (DPMSU), which has been set up for the
purpose of referring Government sponsored patients and those under
the beneficial ambit of KASP. Sri.Sohan, learned State Attorney, then
suggested - which we certainly appreciate - that in the event a
hapless citizen is forced to go to a private hospital in an emergency,
he/she or bystander/s can be given an option of requesting the said
hospital to inform the DPMSU immediately and seek that they be
either considered as a Government sponsored patient or to be
brought ex post facto under the mandate of the KASP, if eligible as per
the criteria. This suggestion now made at the Bar certainly allay most
of our apprehensions in this regard.
37. All the above being so taken care of, a question was
raised at the Bar by the petitioner as to whether the bills issued by
private hospitals prior to the Government Order dated 10.05.2021 can
be referred to the grievance mechanism mentioned therein, for
redressal. The learned State Attorney submitted that though the rates
mentioned in the Government Order are prospective, any genuine
complaint of over charging, profiteering and exploitative tendencies
can be considered by the said mechanism, since it operates under the
relevant applicable Statutes. We record this submission.
In summation, we order this writ petition with the following
directions:
(a) The Government Order, bearing No.G.O.(Rt)1066/2021/
H&FWD dated 10.05.2021, shall be implemented by the Government
and by the officers/officials concerned forthwith and the hospital
admissions of patients suffering from COVID-19 in private hospitals
after the date of the order would be strictly governed by the rates and
the conditions mentioned therein.
(b) All private hospitals in the State of Kerala, as regards
50% beds reserved for COVID-19 patients, would be bound be
enjoined to offer treatment to such patients strictly as per the rates
stipulated in the aforementioned Government Order and any violation
thereof will be scrupulously dealt with by the Authorities concerned,
as prescribed therein and as per the applicable Statutes.
(c) The Government shall make sure that the Grievance
Redressal mechanisms, mentioned in paragraphs 2 and 3 of the
'General Instructions' in the Government Order dated 10.05.2021, are
implemented forthwith and that the State Level Grievance Authority
is also in place immediately.
(d) The Incident Commanders appointed by the Government,
under the provisions of the Disaster Management Act, shall ensure
that the terms and conditions of the Government Order dated
10.05.2021 are followed and implemented in its letter and spirit, by
all private hospitals; and that any violations or infraction thereof is
brought to the notice of the DMO or such other competent Authority
without any avoidable delay.
(e) As stipulated in the Government Order dated 10.05.2021,
every private hospital in the State of Kerala will display the rates of
the services to be given to the public and in particular to a COVID-19
patient, as required under Section 39 of the Kerala Clinical
Establishments (Registration and Regulation) Act, 2018 read with
Rule 19 of the Kerala Clinical Establishments (Registration and
Regulation) Rules, 2018 and will also publish the price list of the
drugs required for treatment, under the provisions of the Drugs
(Prices Control) Order, 2013. This shall be done forthwith.
(f) The Government shall consider setting up of a Toll Free
number for the State of Kerala, so that a citizen in distress can access
that number and obtain the best available options for treatment.
(g) The Government shall consider augmenting the hospital
beds and wards to the existing availability from time to time,
depending upon the number of COVID-19 patients reported; and for
this purpose, they will also consider taking over suitable
auditoriums/halls/hostels and such other, so that maximum number of
deserving patients would obtain treatment without the burden of
having to pay even as per the provisions of the Government Order
dated 10.05.2021.
(h) If any private establishment is running a First Line
Treatment Centre for COVID-19, they would be bound to do so strictly
as per the rates mentioned in the Government Order dated
10.05.2021 as applicable to the general wards and no violations of
this will be permitted by any of the Authorities under the various
statutes and the said order.
(i) Every patient or his/her bystander/s would be entitled to
inform the private hospital to which the patient is admitted in an
emergency, that he/she is either below the poverty line or unable to
afford the rates mentioned in the Government Order dated
10.05.2021; in which event, the said hospital will be obligated to
bring the same to the notice of the appropriate District Programme
Monitoring and Support Unit, so that the said Authority can take an
apposite decision whether the patient, subject to his/her eligibility, be
considered either as a Government referred one or to be brought ex
post facto under the ambit of the KASP. We, however, make it clear
that this shall be done by the competent Authorities after strictly
verifying the credentials and eligibility of the patients as per the
applicable conditions. Needless to state, if, for any reason, a private
hospital fails or refuses to do so, the patient or the bystanders will be
at liberty to approach the DPMSU directly, in which event also, the
afore procedure will be complied with, without reservation.
(j) No private hospital shall be entitled to charge for drugs,
consumables - including PPE kits - essential instruments, like
oxymeter etc., more than the cost price at which it is procured by
them (notwithstanding the MRP); and we direct the Incident
Commanders and the DMO to constantly watch this, by verifying the
purchase bills and the expenses charged on to the patients from time
to time.
(k) As regards consumables like the PPE Kit are concerned,
even though the Government Order dated 10.05.2021 has capped the
numbers that can be charged to the patient, we make it clear that the
hospitals will be entitled only to charge the actuals (and not MRP if
the actual procurement price is lower) on a pro rata sharing and
nothing more, within the said limit. To paraphrase and as an
illustration, merely because the Government Order permits five PPE
kits for an ICU bed, it shall not be charged unless pro rata sharing
would be to that extent, depending upon the number of patients
available.
(l) We leave liberty to the private hospitals to approach the
Government for any concerns that they may have including with
respect to the reduction of their capital cost and expenditure like
electricity, water, etc., and it will be upto the Government to consider
the same, taking note of the fluctuating circumstances presented by
the COVID-19 pandemic situation.
(m) Finally, we reserve liberty to every COVID-19 patient to
file complaint/s before the Grievance Redressal mechanism
mentioned in the Government Order dated 10.05.2021, with respect
to the bills issued by private hospitals prior to it; in which event, the
Authority concerned will deal with them from the stand point of over
charging, profiteering and exploitative tendencies, however, without
reference to the rates mentioned in the said Government Order. A
decision in this regard shall be taken by the Authority concerned at
the earliest, but not later than one month from the date on which it is
made.
After we dictated this part of the judgment, Sri.Ajith Joy,
learned counsel, brought to our notice that Kerala has presently only
2857 ICU beds, while the occupancy, as on today, is 2528. He,
therefore, voiced an apprehension that the number of ICU beds may
run out in the next few days, going by the number of active cases
being reported. He added that Government has now issued a 'Patient
Care Order' dated 09.05.2021, wherein, the Authorities have been
directed to exhort private hospitals to increase their ICU bed capacity
and prayed that necessary directions be issued in this regard also.
Sri.K.V.Sohan, learned State Attorney, responded to this by
saying that Government is doing everything possible to persuade
private hospitals to do so and that they will even be incentivised
appropriately from time to time for this purpose. He assured this
Court that some progress on this will be attempted in the next few
days.
After saying so, Sri.K.V.Sohan brought to our notice that the
Government of Kerala has approached the Central Government with a
request that the present allocation of medical oxygen be increased to
400 Metric Tonnes from the present 219 Metric Tonnes. Sri.Sohan
submitted that the active cases in Kerala is 4.25 lakhs as on day and
continually rising and, therefore, that unless the oxygen supply is
enhanced, the situation faced by various other States earlier would
befall us also.
The learned Assistant Solicitor General, Sri.P.Vijayakumar,
submitted that if a request has been made by the Government of
Kerala to the Central Government, same will be carefully considered;
explaining that there is a mechanism in place, which is dynamic,
whereby the allocation to States are being monitored and
continuously altered on a day to day basis, depending upon the
requirement. He submitted that he will be able to inform this Court
about the progress in this regard in the next week or so.
We record the afore submissions made by the learned State
Attorney and the learned Assistant Solicitor General and since the
directions in this judgment and the above undertakings made by the
Government would require monitoring by this Court for its effective
implementation, we deem it requisite to list this matter for
verification of compliance in two weeks time, so that, by then, we will
also know how the Government Order dated 10.05.2021 has worked
and whether it requires any modifications; further to enable this
Court to decide whether there is enhancement of the number of ICU
and other beds as also the allocation of oxygen to the State of Kerala.
The Registry is thus directed to list this matter on 26.05.2021
for verification of compliance.
Since, as we have said above, this is not an adversarial
litigation, we leave liberty to any party to approach this Court for an
earlier posting and also to file appropriate applications for directions/
clarifications, if any, in future.
Sd/-
Devan Ramachandran, Judge
Sd/-
Dr.Kauser Edappagath, Judge
tkv
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DAILY BULLETIN DATED
25.04.2021 ISSUED BY COVID-19 OUTBREAK
CONTROL AND PREVENTION STATE CELL, HEATH AND
FAMILY WELFARE DEPARTMENT.
RESPONDENT'S EXHIBITS:
EXHIBIT R5(a) TRUE COPY OF ORDER NO.96/2020/HNQA/SHA
DT.13.07.2020 ISSUED BY THE GOVT. OF KERALA
ALONG WITH GUIDELINES FOR PARTNERSHIP WITH
PRIVATE SECTOR IN IMPLEMENTATION OF COVID-19
TREATMENT IN PRIVATE HEALTH CARE INSTITUTIONS
UNDER KASP.
EXHIBIT R5(b) TRUE COPY OF G.O.(RT)NO.1246/2020/H&FWD DT.
06.07.2020 ISSUED BY THE GOVT. OF KERALA.
ANNEXURE R9(a) A TRUE COPY OF THE PROPOSAL SUBMITTED BY THE IMA
TO THE STATE GOVERNMNET
