This article has been written by Diya Banerjee, Symbiosis Law School, NOIDA. The article talks about the Indian approach toward disability and health along with the legal provisions and remedies concerning them.
Table of Contents
Introduction
India’s healthcare sector has already been exposed to the ongoing and unending pandemic. What may have been sufficient till now has proved to be insufficient to keep the cases of coronavirus and flu-related diseases at bay. Although it is justifiable that the pandemic was unexpected, Indian medical facilities have still not proven to be efficient enough to track the effects and results of the infected. Moreover, India has reported an alarming surge in cases of clinical anxiety, depression and those physically disabled have been forsaken and left to their own devices in their very own house. It is not unknown that Indian society has a negative outlook toward mental and physical disability.
Many sections of the society still consider talking about mental disability as a taboo and physical disability is considered pitiful. That’s why when a man/woman with an amputated leg or arm is able to set some kind of national example or world record, people are amazed while it is something any physically challenged can work toward with support and encouragement rather than pity. Keeping aside the social stigmas of disability and poor health standards, the Indian disability and health laws have evolved to encompass the rights and fair treatment of people whose health in manner has been compromised. But the question of to what extent they protect and what more needs to be done to ensure the protection remains open-ended.
Global Take on Disability and Health Care
The World Health Organization speaks of disability as any kind of impairment which limits one’s physical and mental activity like down syndrome or cerebral palsy. It is an interaction between persons with a health condition and negative environment usually mental or personal. About 15% of the global population has some kind of disability, of varying degrees, and are more likely to not get any access to health care services, living their lives with unmet healthcare needs. There are two main reasons why there has been a hike in disability among people-
- Increasing population ageing
- Increase in chronic diseases
The statistics went on to state that nearly 35-50 per cent of people in developed nations and 76-85 percent of people in developing nations had unmet health care needs in 2017. This was even after Article 25 of the United Nations Convention on the Rights of Persons with Disabilities reinforcing the need to make health care accessible to the disabled without discrimination.
The reasons why such a huge gap between realization and demand for health care services exists are as follows-
- Unaffordable costs of services and
- Lack of availability of services
- Physical barriers like narrow hallways, uneven distribution of hospitals, inadequate bathroom facilities
- Inadequate knowledge by health care providers
The lack of healthcare has affected the disabled on a different level, the biggest risk being them developing secondary health problems, health risk behaviours like smoking or substance abuse and premature deaths. To combat these emerging healthcare-related issues, there were few solutions devices by various countries-
- Passing appropriate legislation and introducing policies binding hospitals to the clauses
- Making health care services available through door-to-door facilities
- Increasing the investment from domestic and foreign sources in the health care sector
- Focussing on educating and training the human resource in their fields of specialization
- Carrying out medical researches to study areas which are lacking and demands effectiveness and efficiency
The World Health Organization gave some suggestions so that the global scenario of poor feedback from fields of disability and health can be improved-
- The disabled should be included in discharging health care services
- Awareness drives should be carried out so that people are sensitised to the needs of the disabled and the disabled are themselves aware of their health conditions
- The data which is collected regarding disability-related issues should be disseminated
- Hands-on strategies should be included in hospital guidelines for dealing with physically and challenged patients
India’s Deficient Healthcare Industry
India has a humongous healthcare system to cater to its vast population but the disparity between the services in the rural and the urban areas has become a cause of concern, not only on a national level but has also attracted the global attention for reformation and restructuring. The difference is not only in the geographical difference, but it also exists in the services offered by the public domain and the private domain. Nonetheless, the sole reason behind India being considered as a medical tourist destination is because of its relatively low medical cost and high-quality private hospitals.
Even after the private health sector being top-notch, which leads to the increasing gap in the rural and urban service is the uneven distribution of healthcare facilities and exorbitant price for treatment. All of this is a direct consequence of large scale poverty and illiteracy rate. The WHO reported in 2018 that more than fifty per cent regions of Uttar Pradesh and Bihar have very low rates, quality and access to health services, and the poor statistics of the two states overpower the brilliant performance of all others. The cities which have excellent feedback when it comes to the medical sector are New Delhi, Mumbai, Lucknow and Kolkata. This is ironic because in the National Health Policy which was endorsed by the Parliament in the year 1983 aimed at universal health coverage by 2000, but that hasn’t happened till 2020.
However, the funny part is that more Indians die of poor health care quality than lack of access to it. Especially, when the problem is not with the body but the brain. That’s what makes the issue of India’s inexpensive and rural services worrisome. While those who are privileged have access to both physical and mental care facilities, the poor cannot afford the urban and private services and the services available to them does not guarantee their safety. Then where does that leave them? This is where the law comes into the picture.
According to Article 21 of the Indian Constitution comes into the picture. Article 21 guarantees one of his/her right to personal liberty and that includes the inherent right to highest attainable standards of physical and mental health. The Justice Sunanda Bhandare v. Union of India case stressed the rights of the disabled also included their rights to appropriate health care facilities. Despite that, we saw the report that nearly 16 lakh people died due to treatable diseases which were inadequately treated. Additional 8 lakh people die because of underutilisation of funds and resources reserved for this sector.
The pandemic has put the already crumbling Indian health industry under tremendous pressure to provide for the thousands of new cases which come up every day. If we are to believe the experts, then the pandemic will inversely and indirectly equip India to become amply even, integrated and organised.
India’s Legal Standpoint
Indian legal system is known for its ‘welfare’ nature because of its foundation being the principles of justice, equity and good conscience. The Indian constitution has three pillars which, if righteously applied, work for the people in terms of their right to access and make good of all the medical facilities available-equality, justice and liberty. Equality in terms of equal opportunities being provided for accessing required facilities and justice to get the legal remedy when they are wrongly denied these facilities. And liberty for standing up for one’s own well-being and security. Although the statistics speak negatively of India’s health industry when it comes to dealing with physical and mental health, the Indian laws which have been enacted to make up for the health disparity-
- Right to Healthcare under Article 21: Article 21 speaks that no individual should be deprived of his personal liberty and has the right to protect his/her life. Access to medical facilities is important for one to maintain his/her body and keep them functioning. Therefore, the right to healthcare is an integral part of Article 21 and anyone violating that can be punished.
- Laws for Disability and protecting the disabled-
- The National Medical Commission Act, 2019: This Act stresses the need to educate those pursuing the medical profession and the equal access of highly trained professional medical practitioners to promote community health perspective through equitable and universal services at an affordable rate all across the country.
- Indian Medical Council (Professional Conduct, Etiquette and Ethics) (Amendment) Regulations, 2020 with respect to Telemedicine guidelines: This Amendment was specifically made to meet the door-to-door medical services available at reasonably priced service charges through channels supervised by a Registered Medical Practitioner. It was also to meet the medical needs in remotely located regions through proper chains of transportation.
These laws may have been well-intentioned and good reasoned but they have left much to be asked for. The loopholes and lack of implementation on the basic levels have actually broken off the chain to create a successfully functioning health system.
Why is India still lacking?
The most prominent reasons why healthcare and related laws lack is because of the following reasons-
- private hospitals provide much better services but charge high prices, the poor fall into a debt trap which decreases their standards of living from bad to worse. Thus, they no longer care for ‘good’ facilities, but cheaper facilities even if they provide inadequate and temporary relief. Those who are unable to pay off their loans fall into a debt trap and are punished for any default in payment.
- We hear how the Surrogacy (Regulation) Bill, 2019 has banned commercial surrogacy to prevent exploitation of surrogate mothers and safety of women, but there are still many clinics in India which continue to advertise and practice commercial surrogacy through unlawful means and surrogate mothers, who are mostly poverty-stricken, also agree because of the hefty pay they get to feed their families. However, it has become a common occurrence for women who become surrogate mothers to not only agree for such future contractual obligation but also push other women in need of quick, easy money to take up the task. However, the money may be “easy” but the toll it takes on their health in the later run wrings them dry of their savings running after doctors with uncertain medical guarantees.
- Even after the Rights Of Persons With Disabilities Act, 2016, we saw some improvement in the mental health of India but the act has a vague stance for families with mentally sick members because their mental sickness does not fall under the purview of 21 kinds of disabilities listed under the Act. The Act also does not provide anything regarding the need for ‘care workers’ who are more like professional babysitters for the mentally ‘sick’ not disabled.
- In most Acts and laws for the disabled, one is only punished for intimidating or mocking a disabled if recorded in the ‘public view’. Remember that many of the mentally disabled and sick do not have any understanding of their surroundings, then how are they supposed to report if someone is mocking or intimidating them inside their houses where no one other than the bullying party resides? This has also rendered punitive aspects of various Acts and laws ineffective to be strict and fruitful.
Conclusion
When it comes to mental health, India has continued to overlook the imminent signs that a significant number of its young and potential human resource struggles with various kinds of mental health challenges. Only in recent years has the awareness that seeing a counsellor does not mean a person is ‘mad’ per se has given educational institutions the confidence in providing counselling services to their students. People have become more sensitive to the need to be positive before physically disabled but the greater part of the society really does little to inspire the disabled to work in social circles. The same is the condition of Indian laws regarding health. They have been made but most of them do not get a follow-up in the ground levels. Then does that mean they are useless? No, of course not. What we need is an awareness that there are laws and rights to protect one’s dignity and health. The sole reason why the United States is considerably better than India and other Southeast Asian countries is because of the high levels of awareness Americans have about their rights and what they are entitled to. If the same kind of legal health awareness is made available to others through means of focussing on literacy, the Indian disability and health laws will also see the light of day.
References
- https://www.who.int/news-room/fact-sheets/detail/disability-and-health
- https://www.thelancet.com/journals/langlo/article/PIIS2214-109X(18)30265-1/fulltext
- The fundamental right to health care
- Challenges to Healthcare in India – The Five A’s
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