Emergency Medical Service (hereinafter, as EMS) is a branch of emergency services dedicated to providing out-of-hospital acute medical care and/or transport to definitive care, to patients with illnesses and injuries which the patient, or the medical practitioner, believes constitutes a medical emergency.[1] EMS constitutes an important element in determining the right to health of an individual guaranteed under Article 21 of our constitution.
The present COVID -19 situation has revealed the condition of the health sector where there are shortages of beds, ventilators, and many other requisites important to support life. To make the situation worse, many private hospitals refused to take the patient infected with this deadly virus. Such situations lead to questioning upon current legislation, whether to make the right to emergency services a fundamental right, or not.
Table of Contents
RIGHT TO HEALTH UNDER INDIAN CONSTITUION
Framers of the constitution had known the essence of having life and the elements determinants to it are inclusive in nature to it and can be witnessed in Part IV of Directive Principles of State Policy, which includes as follows:
ARTICLE 39(e)
The state, in particular, directs its policy in securing that the health and strength of workers, men, and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength[2]
ARTICLE 47
The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.[3]
However, being directive principles, it is not enforceable upon the state, which means that one cannot claim violation against them. It merely acts as guidelines in the functioning of the state.
RIGHT TO HEALTH AND ITS DETERMINANTS UNDER ARTICLE 21
From the evolution of the constitution, the judges had given only the literal interpretation of the meaning of ‘life’. It is from the case of Maneka Gandhi v. Union of India[4] that the judges started giving the logical and liberal interpretation to the right to life thus expanding the scope of Article 21. Because of such liberal interpretation, the right to life now also includes the right to health and thus other determinants of health got included in this fundamental right. These can be observed in various judgments given by High courts of different states and the Supreme court.
In the case of the State of Punjab & Ors v. Mohinder Singh Chawla[5], the court held that it is the constitutional obligation to provide the health services giving it the paramount importance. This obligation was further supported in the case of State Of Punjab v. Ram Lubhaya Bagga[6].
The case of Pt. Parmandand Katara v. Union of India [7] was the first of its kind to deal with the issue of emergency medical services. It was held in the case, “A doctor at the Government hospital positioned to meet this State obligation is, therefore, duty-bound to extend medical assistance for preserving life. Every doctor whether at a Government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life.”
In the case of Consumer Education And Research Centre v. Union Of India[8], the Supreme Court held that the right to health and medical aid is a fundamental right. The State, be it Union or State government or industry, public or private, is enjoined to take all such activities which will promote health, strength, and vigor of the workman during the period of employment and leisure and health even after retirement as basic essentials to live the life with health and happiness.
Further, in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal[9], wherein the government hospital failed to give the standard treatment to which the court held that failure to give timely and proper medical treatment in violation of article 21 as there is an obligation on the government to protect the right to life of every person. Further, the Court had concluded the remedial measures to be implemented whenever such needs arise.
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CURRENT POSITION OF EMERGENCY SERVICES IN INDIA
In the present situation, there is no law and no authority that is uniformly applicable across the nation. Every state has its own model of EMS. Some of the EMS runs in the public-private partnership, while others do the work of mere transportation of patients to hospitals.
GUJARAT EMERGENCY MEDICAL SERVICES ACT, 2007
Gujarat is the first state to implement a proper model of standard emergency medical services. This Act includes the provisions to widespread the network of such services with standardized norms to be introduced to hospitals and the professionals involved with such networks and ensuring the quality by providing timely training to these professionals.
108 AMBULANCE SERVICES
The dial 108 is a national emergency free to call number for medical police and fire emergencies currently operated in most of the states, having the aim of reaching within 20 minutes to patients and referring them to the hospitals. It is in public-private partnership mode and has various private EMS providers. It was first operated in Andhra Pradesh back in 2005 and later introduced by the Union Health Ministry across the nation.
HARYANA SWASTHYA VAHAN SEWA NO.102
This scheme is run by the state government of Haryana in partnership with District Red Cross societies. This scheme aims at providing transportation to the nearest medical facility and free transportation to the victims of road accidents, pregnant women, and patients below the poverty line.
In addition to the nationwide toll-free number 102, Bihar has its own Ambulance helpline number – 1911. The State Health Society has details about the ambulance and drivers which are used by the various hospital authorities for the requirement of the services; these authorities also bear the cost of maintenance and management of the ambulance services.
Another example of a scheme introduced by the Health and Family Welfare Department of Madhya Pradesh Government is known as Janani Express. This vehicle service is a model of partnership between private and state where these vehicles are hired by private institutions to ensure the speedy and safe transportation of pregnant women.
Likewise, the West Bengal government also works in collaboration with NGOs and Trust where the state equipped the ambulance and gave the management authority to these NGOs and trusts keeping ownership with itself to operate in various districts.
SUGGESTIONS
EQUIPPED AMBULANCE
The ambulance must have all life supported systems and not merely restricted to first aid so as when the condition of the patient becomes more critical, it will help in buying some time.
TRAINING
Ill trained professionals which are involved in the system, make the life of patients more vulnerable. Therefore, for proper functioning and timely treatment of the patient, training should be given to professionals in a periodic manner.
STRONG TRANSPORT AND COMMUNICATION SYSTEM
Poor transportation systems lead to delay in reaching the critical patients and taking them back to the medical facility. In the same manner, poor communication between the service provider and the concerned authority puts the life of patients in grave danger. Thus proper transportation and strong communication must be requisite of standard EMS.
SUPERVISION
State governments which are collaborating with the private institutes must supervise the functioning of these EMS and must have a report containing all the information about the management and maintenance of state-aided facilities.
SPEEDY TRIAL
Cases and petitions which are dealing with such medical-legal cases must be disposed of in a proper time. There should be time limitations in dealing with such cases because these involve the life of the patients and delay in giving judgment can make their condition more critical.
LEGAL FRAMEWORK
Not having a uniform system of EMS poses a great threat to proper medical care required to the person. As noted from the above mentioned EMS in India, one state has an advanced level of the system while others have confined only to transportation services. Thus the services rendered vary from state to state which in turn leads to differences in treatment of patients. Therefore, a standard legal framework is required which should be implemented in all states so as to bring uniformity in equipment, training, qualification, and services rendered and the treatment given.
LAW COMMISSION OF INDIA
Law Commission of India submitted its 201st report under the heading ‘‘Medical Treatment after Accidents and During Emergency Medical Condition and Women in Labour” chaired by Justice M. Jagannadha Rao. This report is one of its kind because it is the only report to date that has looked upon the matter of considering emergency medical services as integral to the right to life. The report had cited many cases and judgments relevant to the subject and has started the current position of laws and EMS in India. Further details of EMS in other jurisprudence is also given. The report has also given recommendations for the surveillance of medical practitioners and at last, has proposed a model law that can be implemented to establish a proper EMS system in India.
CONCLUSION
After witnessing the facts and cases, it is quite clear that there is a dire need of having systematic and uniform EMS in India. This need is becoming more intense in the presence of COVID -19 in which the poor health infrastructure has cost upon the lives of the people. This also points out one thing clearly that we have not attained the right to emergency services till now which must be an integral part of article 21 of our constitution. We have a long road ahead to attain this right and having an implementation of laws regarding EMS.
References
[1] EMERGENCY MEDICAL SERVICE (EMS) IN INDIA: A CONCEPT PAPER, available at:http://nhsrcindia.org/sites/default/files/Emergency%20Medical%20Service%20in%20India%20Concept%20Paper.pdf (last visited on 22 September 2020).
[2] The Constitution of India, art. 39(e).
[3] The Constitution of India, art. 47.
[4]1978 AIR 597.
[5](1996) 113 PLR 499.
[6]AIR 1998 SC 1703.
[7]1989 AIR 2039.
[8]1995 AIR 922.
[9]1996 SCC (4) 37.
BY VARNIKA SINGH CHAUHAN | BHARTI VIDYAPEETH NEW LAW COLLEGE,PUNE