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Published : April 18, 2014 | Author : Umang Raj
Category : Constitutional Law | Total Views : 8956 | Rating :

Umang Raj
Bangalore Institute of Legal Studies

A landmark Judgment in MOHD. AHMED (MINOR) versus UNION OF INDIA & ORS , Delhi High Court on 17th April, 2014 expressed Government of NCT of Delhi, to release its constitutional responsibility and provide a minor boy aged 7 years who is undergoing from a rare genetic disease called Gaucher Disease, with enzyme replacement treatment at AIIMS free of charge as and when he needs it.

Justice Manmohan, who delivered the Judgment held that “Just because someone is poor, the State cannot allow him to die. In fact, Government is bound to certify that poor and weak sections of society have right to use the treatment for rare and chronic diseases, like Gaucher particularly when the projection is good and there is a probability of the patient leading a normal life. After all, health is not a comfort and should not be the sole ownership of a privileged few”

The concern that comes up for consideration in the Case was whether a minor child born to parents belonging to economically weaker section of the society suffering from a chronic and rare disease, gaucher, is entitled to free medical treatment costing about rupees six lakhs per month especially when the healing is known, diagnosis is good and there is every likelihood of petitioner leading a normal life.

Emphasizing Right to health is a fundamental right originating from Article 21 of the Constitution of India, the Court held that “In the opinion of this Court, Article 21 of the Constitution clearly imposes a duty on the Government to take whatever steps are necessary to ensure that everyone has access to health facilities, goods and services so that they can enjoy, as soon as possible, the highest attainable standard of physical and mental health. By virtue of Article 21 of the Constitution, the State is under a legal obligation to ensure access to life saving drugs to patients. A reasonable and equitable access to life saving medicines is critical to promoting and protecting the right to health. This means that Government must at the bare minimum ensure that individuals have access to essential medicines even for rare diseases like enzyme replacement for Gaucher disease. Availability of a very expensive drug virtually makes it inaccessible.”

The Court also opined that Government needs to seriously think about expanding its health budget if their right to life and right to equality as enumerated in Articles 14 and 21, are not to be rendered illusionary. If poor patients can get pleasure from recent innovations in the medical field, like robotic surgery, genome engineering the Government must immediately think of streching its investment in the health sector.

The Court issued the following suggestions relating to the issue
i. All government hospitals could have a separate CSR/ Charitable entity/account wherein donations can be received. The donations could be subject to an audit.

ii. Each hospital could have a designated officer, to whom applications for assistance can be made by patients in need. The decision to whom financial assistance could be provided, be left to the Medical Superintendent/CEO of the hospital along with Head of the Departments. Delhi could be adopted as the first model state.

iii. The Ministries of Corporate Affairs and Finance could consider providing extra credit (for instance increased credit) for donations in certain sectors, such as health.

iv. The Government could adopt a holistic approach to facilitate donations, so that the tax regime supports the said efforts.

v. All donations in cash and kind must be accounted for, with complete transparency to ensure no misuse or misappropriation of donations.

vi. Government hospitals could put up list on the State Department of Health website of the drugs, implants and devices they require for EWS/BPL patients. This way people would donate as per the need of each hospital. This could be revised on a monthly basis.

vii. The State Government may put up a list of drugs, implants and devices which are excluded from its budget for which donations would be welcome.

viii. Both the Central and State Governments could create a revolving fund to take care of recurring expenditure of patients suffering from chronic and rare diseases.

ix. The Government could constitute a High Powered Inter-disciplinary Committee to:

-Develop and update a list of guiding principles/best practices in the area of donations in healthcare.

-Develop a policy for tackling rare diseases and promoting the development of orphan drugs.

-Evolve new and innovative methods for attracting spending in the area of healthcare.

This Committee could have representatives from various State and Central Government departments, private and government hospitals, non-governmental organizations working in the area of \healthcare, representatives of patient’s rights groups, and representatives of pharmaceutical and other companies in the healthcare sector.

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