Informal Service Providers
of Health Care
Recognition & Legitimacy
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Indira Unninayar, Advocate
21/03/14
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Indira Unninayar, Advocate
RURAL & URBAN POOR
WHO ARE 80%
POPULATION
Facts Summary
•Public healthcare infrastructure is 1/3rd to 1/6th of what is
recommended
•80% of healthcare is CURATIVE instead of being
PREVENTIVE
•Most healthcare is out of pocket;
2.2% / 60 lakh Indians are pushed below poverty line
every year
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Indira Unninayar, Advocate
Expenditure on Healthcare
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Informal Healthcare Providers
(Estimates)
•For every 1,00,000 (1 lakh) :
– There are ONLY 62.5 qualified doctors in India
– Of which there are ONLY 5 in Rural India
– And 197 in Urban India
•For a total population of 1.21 billion:
• Only 6,00,000 qualified doctors practice allopathy PLUS
• 6,00,000 qualified doctors practice Ayurveda, Homeopathy, Unani, Sidha
PLUS
• 10-15 lakh Informal Providers practice healthcare
• BUT Informal Providers are not ‘recognized’ and lack ‘legitimacy’
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Indira Unninayar, Advocate
Necessary numbers
• For every 1,000 population:
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–
–
–
–
–
India has .6 physicians + 1 nurses/midwives
U.S. has 2.4 physicians + 9.8 nurses/midwives
U.K. has 2.8 physicians + 9.8 nurses/midwives
Brazil has 1.8 physicians + 6.4 nurses/midwives
China has 1.8 physicians + 1.7 nurses/midwives
Singapore has 1.9 physicians + 6.4 nurses/midwives
• To achieve MDG Goals :
• Need a minimum of 2.3 physicians, nurses, midwives
• Less is a recipe for failure
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Indira Unninayar, Advocate
Situation Today
Healthcare CRISIS in India
Right to Health – a fundamental right,
stands seriously violated for most
Indians
HEALTHCARE CRISIS IS ALSO A POVERTY ISSUE
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Indira Unninayar, Advocate
Question
• Low utilization of Primary OPD Public Healthcare is
because of long distances, inconvenient opening
hours, lengthy waiting, staff absenteeism, poor
availability of medicines, and poor quality of care
•Informal Healthcare Providers are already filling
several of these gaps
•Q: Can the State formally utilize this readily available
resource with Recognition & Legitimacy?
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Indira Unninayar, Advocate
Constitutional Mandates
Above all laws
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Indira Unninayar, Advocate
Preamble
•Relevant portions:
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–
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SOCIALIST
JUSTICE, social, economic
EQUALITY of status and opportunity
Dignity of the individual
•Is the ‘basic structure’ of the Constitution
•Aims - to end poverty, ignorance, disease and inequality of opportunity
•Enables legislation or executive action
– To remove inequalities
– To protect interests of weaker/vulnerable sections of society
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Legal Framework Indira Unninayar,
Advocate
Fundamental Rights (Part III)
• Inalienable, guaranteed by State
• Article 12
– Government, Parliament
– Government, Legislature of each State
– All local or other authorities in India or under the control of the GOI
• Article 13
– All laws inconsistent with this part shall be void
– The State shall not make any law which takes away or abridges the rights
conferred by this part
• Article 14 (against arbitrariness, discrimination)
– The State shall not deny to any person equality before the law or the
equal protection of the laws in India
• Article 21 (right to health, medical services)
– No person shall be deprived of his life or personal liberty except
according to procedure established by law
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Fundamental Rights (Part III)
- NOT TO BE USED -
• Article 19(1)(g) - Protection of certain rights regarding freedom of
speech, etc.
(g) to practise any profession, or to carry on any occupation, trade or
business
• Article 19(6) – Nothing in sub-clause (g) shall affect the operation of
any existing law in so far as it imposes, or prevent the State from
making any law imposing, in the interests of the general public
reasonable restrictions on the exercise of the rights conferred by the
said sub-clause, and, in particular, nothing in the said sub-clause, shall
affect the operation of any existing law in so far as it relates to or
prevent the State from making any law relating to,(i)the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled
by the State, of any trade, business, industry or service, whether to
the exclusion, complete or partial, of citizens or otherwise.
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Fundamental Rights (Part III)
• Article 15 - Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth
(5) Nothing in this article or in 19(1)(g) shall prevent the
State from making any special provision, by law, for the
advancement of any socially and educationally
backward classes of citizens or for SC or ST, in so far as
such special provisions related to admission to
educational institutions including private educational
institutions whether aided or unaided by the State
•
Article 23 Prohibition of traffic in human beings and forced labour –
(2) Nothing in this article shall prevent the State from imposing compulsory service
for public purposes, and in imposing such service the State shall not make any
discrimination on grounds only of religion, race, caste or class or any of them.
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Enforcement/Realization of
Fundamental Rights (Part III)
• Article 32 – Supreme Court
• Article 226 – High Courts
Anyone can move the courts
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Directive Principles of State Policy
(Part IV) - OBLIGATION ON STATE
•
Article 37 – Though the provisions are not enforceable by any court, but the principles therein laid
down are nevertheless fundamental in the governance of the country and it shall be the duty of the
State to apply these principles in making laws.
•
Article 38 – (1) State shall strive to promote the welfare of the people by securing and protecting as
effectively as it may a social order in which justice, social, economic and political, shall inform all the
institutions of national life
(2) The State shall, in particular, strive to minimize inequalities in status, facilities and opportunities,
not only amongst individuals, but also amongst groups of people residing in different areas or
engaged in different vocations
•
Article 39 – Certain principles of policy to be followed by the State – The State shall, in particular,
direct its policy towards securing(e) 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
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom
and dignity and that childhood and youth are protected against exploitation and against moral and material
abandonment
(b) that the ownership and control of material resources of the community are so distributed as to best serve the
common good
(c) that the operation of the economic system does not result in the concentration of wealth and means of
production to the common detriment
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Directive Principles of State Policy
(Part IV)
•
Article 41 – Right to work, to education and to public assistance in certain cases –
The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want
•
Article 42 – The State shall make provision for securing just and humane conditions of
work and for maternity relief
•
Article 47 – Duty of the State to raise the level of nutrition and the standard of living
to improve public health - 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 endeavour to bring about
prohibition of the consumption except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health.
•
51. The State shall endeavour to—
(c) foster respect for international law and treaty obligations in the dealings
of organized peoples with one another; and
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Fundamental Duties (Part IVA)
• Article 51A - It shall be the duty of every citizen of
India—
• (h) to develop the scientific temper, humanism and
the spirit of inquiry and reform;
• (i) to safeguard public property and to abjure
violence;
• (j) to strive towards excellence in all spheres of
individual and collective activity so that the nation
constantly rises to higher levels of endeavour and
achievement;
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Jurisdiction
I (Union)
64. Institutions declared by
law to be of national
importance (63 – BHU, AMU
& DU)
65. Union agencies and
institutions for(a)professional, vocational or
technical training…
(b) promotion of special
studies or research
66. Co-ordination and
determination of standards
in institutions for higher
education or research and
scientific and technical
institutions
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II (State)
6. Public health and
sanitation, hospitals and
dispensaries
64. Offences against laws
with respect to any of the
matters in this list
III (Concurrent)
19. Drugs and poisons,
subject to …
20 Economic and social
planning
20A Population control
and family planning
25. Education, including
technical education,
medical education and
universities subject to
List I (63-66)
26. Legal, medical and
other professions
29. Prevention of
extension of one State to
another, of infectious or
contagious diseases or
pests affecting men,
animals or plants.
30. Vital statistics
including registration of
births and deaths
Legal Framework
Indira Unninayar, Advocate
Health
– WHO definition • ‘Health’ is a state of complete physical, mental
and social well-being and not merely the
absence of disease or infirmity
• INVOKE INTERNATIONAL CONVENTIONS
• COURTS ARE QUITE IGNORANT ABOUT
GROUND REALITIES
• USE THEIR OWN JUDGMENTS
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International Commitments
• Universal Declaration of Human Rights, 1948
– Right to inherent dignity, human rights
– Right to health and medical care (Art 25)
• International Covenant on Economic Social &
Cultural Rights (ICESR), 1976
– Enjoyment of the highest attainable standard of
physical and mental health (Art 12)
– The creation of conditions which would assure to all
medical service and medical attention in the event
of sickness. Legal Framework Indira Unninayar,
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International Commitments
•
Alma Ata Declaration, 1978 – The need for urgent action by all governments, all health and
development workers, and the world community to protect and promote the health of all the
people of the world
•
Strong reaffirmation that health, which is a state of complete physical, mental and social
wellbeing, and not merely the absence of disease or infirmity, is a fundamental human right and
that the attainment of the highest possible level of health is a most important world-wide social
goal whose realization requires the action of many
•
VI - Primary health care is essential health care based on practical, scientifically sound and
socially acceptable methods and technology made universally accessible to individuals and
families in the community through their full participation and at a cost that the community and
country can afford to maintain at every stage of their development in the spirit of self reliance
and self-determination. It forms an integral part both of the country's health system, of which it
is the central function and main focus, and of the overall social and economic development of
the community. It is the first level of contact of individuals, the family and community with the
national health system bringing health care as close as possible to where people live and work,
and constitutes the first element of a continuing health care process.
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Legal Framework Indira Unninayar,
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International Commitments
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Alma Ata Declaration, 1978 - VII Primary health care:
1.
reflects and evolves from the economic conditions and sociocultural and political characteristics of
the country and its communities and is based on the application of the relevant results of social, biomedical
and health services research and public health experience;
2.
addresses the main health problems in the community, providing promotive, preventive, curative and
rehabilitative services accordingly; …
5.
requires and promotes maximum community and individual self-reliance and participation in the
planning, organization, operation and control of primary health care, making fullest use of local, national and
other available resources; and to this end develops through appropriate education the ability of communities
to participate;
6.
should be sustained by integrated, functional and mutually supportive referral systems, leading to the
progressive improvement of comprehensive health care for all, and giving priority to those most in need;
7.
relies, at local and referral levels, on health workers, including physicians, nurses, midwives,
auxiliaries and community workers as applicable, as well as traditional practitioners as needed, suitably
trained socially and technically to work as a health team and to respond to the expressed health needs of the
community.
VIII All governments should formulate national policies, strategies and plans of action to launch and sustain
primary health care as part of a comprehensive national health system and in coordination with other
sectors. To this end, it will be necessary to exercise political will, to mobilize the country's resources and to
use available external resources rationally.
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International Commitments
WHO/World Health Organization
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The ultimate goal of primary health care is better health for all. WHO has identified five key elements to
achieving that goal:
reducing exclusion and social disparities in health (universal coverage reforms);
organizing health services around people's needs and expectations (service delivery reforms);
integrating health into all sectors (public policy reforms);
pursing collaborative models of policy dialogue (leadership reforms); and
increasing stakeholder participation.
Key facts
The WHO Constitution enshrines the highest attainable standard of health as a fundamental right of
every human being.
The right to health includes access to timely, acceptable, and affordable health care of appropriate
quality.
Yet, a vast number suffer financial catastrophe annually, lakhs are pushed below the poverty line as a result
of health care expenditure.
The right to health means that States must generate conditions in which everyone can be as healthy as
possible. It does not mean the right to be healthy.
Vulnerable and marginalized groups in societies tend to bear an undue proportion of health problems.
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MDG 2000
• Reduce child mortality
• Improve maternal health
• Combat HIV/Aids, Malaria and other diseases
• INDIA LAGS; BANGLADESH STORY – A REALITY CHECK
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NRHM 2005
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Improve availability and access to quality health care by people, especially for those
residing in rural areas, the poor, women and children
ASHA (Accredited Social Health Activist)
– with induction training of 23 days, spread over 12 months, and on the job training
throughout the year, accountable to the village panchayat
Efforts to improve skills of RMPs (Registered Medical Practitioners)
Experiments and innovation to improve the position in Rural areas, given the current
problems of availability of Healthcare providers
"an ASHA in every village" in India, a target that translates into 250,000 ASHAs in 10
states.
The grand total number of Ashas in India was reported in January 2013 to be 863,506
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Important case law
• Right to health, right to life
•Obligation of State to provide healthcare,
medical services without plea of resource
constraint
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Indira Unninayar, Advocate
Important case law
• Right to health, right to life
• Obligation of State to provide health without plea of resource constraint
• Paschim Banga Khet Mazdoor Samity vs State of WB : (1996) 4 SCC 37:
• Right to medical services under Art 21
• Every citizen looks to the State to perform its obligations with top priority
•CERC vs UOI & Ors: (1995) 3 SCC 42:
• In a developing society like ours steeped with unbridgeable and ever widening gaps
of inequality in status and of opportunity, law, what is due cannot be ascertained
by absolute standard which keeps changing depending on the time, place and
circumstances.
• Elastic, justice to all sections of society
•State of Punjab vs Ram Lubhaya Bagga: (1998) 4 SCC 117
• The Right of the State to manage its policy from time to time, under changing
circumstances, cannot be challenged.
• The arbitrariness or violation of constitutional mandates can be challenged
• Every individual right has to give way to the right of the public at large
• Directive Principles have been read into the fundamental rights – to life, to live with
dignity
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Important case law (2)
• Khatri vs. State of Bihar: (1981) 1 SCC 627
• State cannot deny constitutional rights based on
resource constraint. A time bound plan is necessary.
• It is the joint obligation of the Centre and States to
provide medical services, it is expected that the UOI
would render the necessary assistance in
improvement of medical services across the country
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Watch out for/Challenge Bad Laws
•MCI vs State of Rajasthan: 1996 AIR 2073: 1996
Scale (1) 634
• Wrongly says that unless a person has qualified
himself in medicine, he is not eligible to be registered
as medical practitioner
•Deliberate mischievous, misinterpretation of
laws by the MCI, IMA, or Govt – vested interests
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Blocks
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MCI, IMA – turf war
Ostensible reason – concern for quality
But in reality, to protect turf interests
Expose them – the referral system, the covert nexus, the real reason violative of right
to health
•
Inheritance of a colonial system, designed to undermine indigenous systems and
practices and perpetuate control centres
Generates power centres through a false notion of what is ‘lawful’
Criminalizes those who do not tow the line
But turns a blind eye to the reality of ‘lawlessness’
Similar state of illegality, vagueness, uncertainty, deliberate openings for extortion:
Laws abused, not used
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NMVs
Hawkers, street vendors
Municipal cleaning, rag pickers
Freedom of speech – book, film bans
Judiciary – huge challenge
Informal Providers – huge challenge
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Indira Unninayar, Advocate
Important SC judgments (3)
• Dr Mukhtiar Chand vs State of Punjab: (1998) 7 SCC:
• If State law recognizes a qualification then the person is entitled to
be medical practitioner
• S 33 of the Drugs & Cosmetics Act confers wide powers on the
Central Government to make rules
• Rule 2(ee) of the Drugs & Cosmetics Rules allows the State to
declare by a general or special order made by the State
Government as a person practising the modern scientific system
of medicine
• To fulfill S 15(2) of the IMC Act, she/he should also be registered
in a Medical Register of the State. No person other than a medical
practitioner enrolled on a State Medical Register, (b) shall practise
medicine in any State
• Upheld in Subhasis Bakshi & Ors vs W.B. Medical Council &
Ors (2003) 9 SCC 269
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Strategies
• Use Drugs & Cosmetics Act & Rules
• Make representations to Central Govt u/S 10 A for establishment of
new medical college, new course of study
• New University under Medical Degrees Act, 1916
• New laws including ordinances, delegated legislation
• New laws for Healthcare professionals
• Challenge some of the existing court rulings
• Make representation seeking the realization of Right to Health and
access to Healthcare
• Invoke international conventions too
• THROUGH REPEATED, PERSISTENT REPRESENTATIONS, CHALLENGES
• THROUGH NGOS TOO
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Indira Unninayar, Advocate