HC overrules government orders, allows privation hospitals and labs to test for Covid-19 in Telangana

What was the case about?

On Wednesday the Telangana high court declared the state government’s decision to confine COVID-19 tests to selected government hospitals such as Gandhi Hospital as unconstitutional.

The bench headed by Justices M S Ramachandra Rao and K Lakshman set aside a directive issued by Hyderabad District Medical and Health Officer and said that the Government cannot compel the people to get tested and treated at designated Government Hospitals.

The judgment stated that those who were willing to get their tests, isolations, and treatment for a price from the private sector at approved ICMR laboratories and hospitals, should be allowed to avail such facilities.

GOVERNMENT ORDERS 

First-order was passed on 21.03.2020 by the state government permitting all hospitals, Government and Private, treat with COVID-19 cases.

Another order was passed on 11.04.2020 by the District Medical and Health Officer, Hyderabad (respondent no.4) permitting all private hospitals to treat COVID-19 cases and not to perform any other elective procedures or surgeries.

The District Medical and Health Officer, Hyderabad canceled the order on the same day without assigning any reasons resulting prohibiting private hospitals from treating COVID19 patients

CONTENTIONS OF THE PARTIES

Petitioner

Petitioner contended that all patients who were suspected to be suffering from COVID-19 virus were being shifted to the Government Hospitals or to the Government Isolation centers for treatment or for observation; that facilities there were totally inadequate and lacking hygiene.

He relies on Article 21 of the Constitution of India and contended that the said “article guarantees the Fundamental Right to life and personal liberty which includes the right of person to choose his own doctor and hospital as per his choice; that under the guise of taking steps to prevent the spread of the Pandemic, the State cannot restrict the liberty and freedom of a citizen to choose his own doctor and hospital and force him to take treatment from Government sources particularly in view of the limited resources of the Government”.

He contended that if some of the patients, wish to take treatment in Private Hospitals, the respondents cannot restrict the same and such conduct would be unreasonable and illogical

The petitioner referred to a news report and contended that apart from lack of hygiene and unsanitary conditions in the Government facilities for COVID-19 patients, the patients were not allowed to carry cell phones.

Respondent 

Contended by the respondent that the Writ Petition did not disclosed any public interest that it is engineered by vested interests and appears to be filed as a proxy of private hospitals in the State of Telangana.

No evidence is filed by the respondent to show that the Petitioner is not acting bonafide.

The Advocate General for State of Telangana contented that there was a state of emergency in the view of COVID-19 pandemic and that such emergency justifies the state action.

Court said that “No emergency has been declared by the government under Article 356 of Constitution of India, though there is a pandemic situation undoubtedly”,

COURTS OBSERVATION 

No legal basis was indicated in the counter affidavit for the respondent to compel citizen to get tested and treated in only Government hospitals like Gandhi Hospital for treatment.

The Right to health was part of the right to life under Art.21 of the Constitution.

Freedom of a citizen to approach any private laboratory and hospital approved by ICMR.

The bench however disagreed and said an emergency of any sort was not an excuse to trample on the rights under Article 21.

Court Held

The court ultimately held that the state cannot compel residents of Telangana to get 

(a) Testing for COVID-19 in NIMS/Gandhi Medical Hospital or only in the other designated laboratories decided by them

(b) treatment/isolation only in hospitals designated by them, when the citizens/ residents are willing to pay the cost and get their blood samples tested in the private ICMR approved laboratories or private sector hospitals having the requisite infrastructure by paying the requisite charges