This article is co-authored by Advocate Keral Mehta
Healthcare institutions/ hospitals often hold patients “hostage” long after they should be medically discharged, using armed guards, locked doors, and even chains to extract money for unpaid bills. Even death does not guarantee release because even morgues hold dead bodies for unpaid hospital bills.
Most recently, a 60-year-old man was tied to a hospital bed in Shajapur City Hospital, Madhya Pradesh after his family failed to pay the medical bill of Rs. 11,200. Such instances happen more often than reported. By illegally detaining the patient, the hospital is curtailing the personal liberty of the patient so detained.
Confining a person to a hospital without lawful justification will amount to wrongful confinement as defined under section 340 of the Indian Penal Code, 1860. The initial burden of proof is on the person to prove that he was confined, but once it is established, the burden will then shift on to the detaining hospital authorities to prove that they had lawful grounds for detention. The hospitals have no right whatsoever to illegally detain a person for non-payment of their dues.
The High court of Delhi in Devender Singh Chauhan Vs State & Ors has held that “Merely because the cities of the hospital treating the patient are outstanding that certainly cannot be the reason to withhold the release of the patient” and further commented that “we deprecate this practice”.
Article 21 of the Constitution of India guarantees to the people right of personal liberty and prohibits any inhuman treatment.[3] The Supreme Court of India in the case of Consumer Education and Research Centre vs. Union of India[4] held that Article 21 read along with the relevant directive principles guaranteed in articles 39 (e), 41, and 43 shows that the right to health and medical care is a fundamental right and it makes the life of a person meaningful and dignified.
The Supreme Court in Paschim Banga Khet Mazdoor Samiti v. State of West Bengal[5] held that the Government hospitals run by the State and the Medical Officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in a violation of his right to life guaranteed under Article 21. The hospitals cannot refuse treatment on the ground that the victim is not in a position to pay the fee or meet medical expenses. The state cannot avoid its constitutional obligation to provide adequate medical services to people on account of financial constraints[6].
Despite the rights enshrined in the Constitution of India, it is not uncommon in the hospitals to be detaining a person on account of unpaid bills or holding a dead body of a deceased. Such practice is not only illegal but squarely inhuman and torturous for the person detained as well as for the relatives of such person.
Public Health being a state subject under List-II of the Constitution, there is an urgent need for a proper law to be enforced by the States in order to put an end to such inhuman practices by the hospitals. A balance needs to be achieved between patients, who are unable to pay the bill or who have been exorbitantly charged by the hospital, and also the problem faced by the hospitals who receive threats from the patients and even go to the extent of vandalizing the hospital and assaulting the doctors working therein. The High Court of Bombay in Trevor Nerves Britto Vs State of Maharashtra & Ors[7] held that “though hospitals have a right to recover the amount which is due and payable by the patient, they cannot resort to the detention of patient on that pretext. At the same time, some type of mechanism has to be evolved in order to recover the rightful dues of the hospital.”
The High Court of Bombay in Sanjay S. Prajapati Vs State of Maharashtra[8] while considering a PIL stated that “this court has already held that detention of patients by hospitals for non-payment of bills/charges will amount to wrongful confinement. Therefore the State Government will have to provide adequate grievance redressal mechanism so that relatives of the patient can approach appropriate nominated authority which can take immediate action within the four corners of law including the action of setting the criminal law in motion.”
In a first, the Ministry of Health and Family Welfare released a ‘Charter of Patient Rights’ in 2018 laying down the 17 basic rights of a patient. This Draft Charter is prepared by the National Human Rights Commission (NHRC) drawing inspiration from various national, international and constitutional obligations, including the Constitution of India, Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002, the Consumer Protection Act 1986, the Drugs and Cosmetic Act 1940 and the Clinical Establishment Act 2010.
In its present form, the draft Charter aims to provide protection against hospital malpractices by granting certain rights to the patients particularly the Right to be discharged – “A patient has the right to be discharged and cannot be detained in a hospital, on procedural grounds such as [a] dispute in payment of hospital charges. Similarly, caretakers have the right to the dead body of a patient who had been treated in a hospital, and the dead body cannot be detailed on procedural grounds, including non-payment/dispute regarding payment of hospital charges against wishes of the caretakers”.
Other important rights enshrined under the draft charter includes right to adequate and relevant information about their illness and treatment, right to emergency medical care without any conditions, right to informed consent before any test or treatment, right to confidentiality as well and human dignity and privacy, right to a second opinion, right to transparency in rates, right to non-discrimination and right to redressal in case of complaints against a doctor or hospital.
It is to be noted that, this draft charter and has not been adopted yet and unless this charter is made into a law backed with sanctions in case of non-compliance, the Patient Charter will be a toothless tiger.
There is an imminent need for comprehensive legislation that directly deals with the issue of malpractices adopted by hospitals and at the same time strikes a balance between the rights of doctors and hospitals by devising a mechanism for recovery of their legal dues.
PRINCIPLE OF CONSTITUTIONAL SILENCE OR ABEYANCE- The said principle is a progressive one and is applied as a recognized advanced constitutional practice. It has been recognized by the Courts to fill up the gaps in respect of certain areas in the interest of justice and larger public interest.[9] Until proper legislation comes into force, the Courts in India should step up to the occasion and lay down proper guidelines to be followed by the Hospitals in dealing with patients and in order to reduce the plight of the suffering patients and their family members.
As in the past, the Courts have, in the interest of justice, followed this principle and laid down guidelines in several cases such as procedural safeguards in the matter of adoption of Indian children by foreigners in the case of Laxmi Kant Pandey v. Union of India[10] or issuance of guidelines pertaining to arrest in the case of D.K. Basu v. State of West Bengal[11] or directions issued in Vishakha and others v. State of Rajasthan and others[12]. It is not out of place to expect such judicial activism on the part of the judiciary at this hour.
[1] Section 340- Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.
[2] 2017 SCC OnLine Del 8130
[3] Francis Coralie Mullin vs The Administrator, Union, 1981 SCR (2) 516
[4] 1995 SCALE (1)354
[5] AIR 1996 SC 2426
[6] Pravat Kumar Mukherjee v. Ruby General Hospital, AIR 2007 Cal 77
[7] Writ Petition No. 2359 of 2014 dated 30.06.2014
[8] 2016 SCC OnLine Bom 4751
[9] Manoj Narula vs Union Of India (2014) 9 SCC 1
[10] AIR 1987 SC 232
[11] AIR 1997 SC 610
[12] (1997) 6 SCC 241
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