Rajasthan’s Right To Health Act: A Case of Using the Wrong Means to Achieve the Right Ends

by | May 18, 2023

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About Akarshi Narain

Akarshi Narain is a second-year student at the National Academy of Legal Studies and Research, Hyderabad. Her preferred pronouns are she/her. She is extremely passionate about the intersection between human rights law and health law.

The landmark Rajasthan Right to Health Act makes access to healthcare a legal entitlement of every resident of the State. Crucially, the Act provides for the right to free treatment, including ‘emergency treatment’ without prepayment at any health institution in the State. No hospital or doctor can refuse a patient, any violation exposing them to a fine of Rs 10,000, and up to Rs 25,000 for subsequent violations. It also lays down obligations of the State Government, establishes Health Authorities and offers a grievance redressal mechanism. This is contrasted with the constitutional position which conceptualizes health as a duty and not an obligation of the government. This sets a lesser threshold for enabling the right to health. While judicial interpretation has solidified it as a fundamental right under Article 21, the legislation goes further by placing the onus on hospitals to provide healthcare services mandatorily.

Doctors term the Act as draconian, insisting that it fails to account for practical realities of the system and penalizes doctors. Backed by the Indian Medical Association, doctors have taken to the street in protest, while the Rajasthan State Human Rights Commission termed their strike as “an abuse of human rights”. However, the Act suffers from four significant lacunae.

First, the Act’s most contentious section mandates all hospitals provide free emergency treatment. However, the Act does not give an exhaustive definition of an emergency. The assessment of an emergency can vary by doctor and patient. This creates bureaucratic challenges in determining an emergency. Linked is the need to distinguish between urgent and emergent care in the Act. For instance, a normal birth is urgent but not necessarily an emergency. Given the high penalties against doctors for non-compliance, private hospitals could be overburdened with non-emergent cases shrouded as “emergencies”. This would deteriorate healthcare quality, thereby diluting the legislative intent behind the Act. On the constitutional front, while health is the right of every citizen, as per Article 47, the duty to provide healthcare is the responsibility of the State Government. Shifting this responsibility onto private hospitals without providing adequate resources or strengthening public healthcare would fail to improve health outcomes and the State Government sidestep their constitutional obligations.

Second, Clause 3(d) entitles a resident to free healthcare from any hospital, including private establishments. While legislators have assured private hospitals of reimbursement, this has not been guaranteed in the Act. Clause 7(a) requires the government to provide an appropriate budget, but it is unclear whether this would cover full or partial reimbursement. Even if full reimbursement is promised, implementing the right to health will increase the State’s financial obligation. However, no budget has been allocated for the 2023-24 financial year. The healthcare sector’s apprehension is buttressed by the fact that historically, government reimbursement to private service providers was substantially delayed and only partially reimbursed. The Act might make private establishments commercially unviable, violating Article 19(1)(g) of the Constitution.

Third, the Act provides for a District and State Health Authority to investigate disputes and redress grievances. This authority does not include doctors, an omission that could breed bias and corruption. Clause 10 provides for a web portal and helpline centre to resolve complaints. The portal may contain a person’s medical information, and the Act remains silent on which persons could have access to this information. This may run afoul of privacy rights and a Supreme Court judgement that held professional doctor-patient relationships a matter of confidence.

Fourth, the Act may be incompatible with existing State health laws, as the Vidhi Center for Legal Policy points out. To address this, Clause 18(e) enjoins the State Government to conduct a future compatibility review. This is a major legislative oversight and is indicative of legislative lethargy. The interaction between existing laws and the Act should be laid out in the latter to avoid unnecessary litigation and confusion.

Rajasthan’s Right to Health Act is riddled with ambiguities. Even if the Act corrects its flaws, it is the wrong means to achieve the right end. The right to health is indisputable. However, exposing doctors to liability for not providing healthcare in the world’s most populous country could open a patient floodgate undermining the stability of the healthcare system. The government should invest in improving public healthcare, which is more financially sound than reimbursing private hospitals.

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