The story so far: The recently concluded Budget session of the Rajasthan Assembly revived the debate around the Right to Health Bill. The legislation, if passed, will provide mandatory free and affordable medical services in hospitals, clinics and laboratories — both public and privately owned. Rajasthan would be the first State government to establish and protect the legal rights of patients to access equitable healthcare services. The Bill also provides for strengthening the public healthcare system.
Faultlines have emerged around the legislation’s passage. Private hospital doctors object to the Bill citing it is hastily drafted, ignores ground realities and may tighten norms in an already over-regulated field. Civil society groups and activists, however, note that while the Bill needs clarity and could be sharpened to avoid implementation loopholes, it is an important starting point in framing healthcare as a tangible “right” for citizens.
What does the Bill say?
The Congress-led government tabled the Right to Healthcare Bill, 2022 in the Rajasthan State Assembly in September 2022. The Bill provides rights to patients and healthcare providers, places the obligation on the government to protect these legal rights and mandates the setting up of grievance redressal mechanisms.
The legislation will be a “progressive reduction in out-of-pocket expenditure in seeking, accessing or receiving health care” for patients, the preamble states. Rajasthan residents will be entitled to free check-ups, drugs, diagnostics, emergency transport and care at all public health institutes, along with affordable surgeries. The Bill frames medical services as a public service rather than a vehicle for making money, in line with Chief Minister Ashok Gehlot’s earlier statements. If enacted, the Act will have a recurring annual expenditure of Rs. 14.5 crores.
“The Bill further avers that no private health care facility should deny emergency care to anyone -- even if the patient is not able to pay at the time,” says Chhaya Pachauli, who is associated with advocacy group Prayas.
Clause 3 of the Bill lays down 20 rights a State resident will be entitled to — including the right to informed consent, to seek information (in the form of medical records and documents) regarding diagnosis and treatment, to keep this data confidential and private and to receive treatment without discrimination based on caste, class, age, gender, among other markers.
Clause 4 of the Bill shifts the burden of responsibility in providing adequate medical services to the government. The government is “obligated” to provide funds, set up institutions and constitute grievance redressal systems. They must take the initiative to set up a State Health Authority and district health authorities. Beyond resolving complaints, the authorities would be tasked with planning healthcare services, monitoring services and conducting routine clinical, social and economic audits. Such decentralisation is a “regional approach to offering healthcare”, Ms. Pachauli says, adding that it allows for context-specific healthcare planning which is in tune with local healthcare needs.
Moreover, the Bill also talks about the safety of healthcare providers and improving public health infrastructure. Clause 4 mandates that the government develop a Human Resource Policy for Health ensuring the availability and equitable distribution of doctors, nurses and other healthcare workers at all levels of the system across regions. This focus on making services equitable and qualitative “works in favour of the healthcare providers and helps to improve patient-doctor relationship,” Ms. Pachauli adds.
Does the Constitution guarantee a right to health?
The Indian Constitution does not explicitly talk about a right to health. A “right to health”, in theory, is derived from the right to life and liberty as guaranteed under Article 21 of the Constitution.
Previously, courts have highlighted the State’s obligation to protect and promote the health of citizens, pointing to Constitutional provisions such as Article 38 (promoting the welfare of people) and Article 47 (which directs the government to meet the nutrition and health requirements of the population). In Paschim Banga Khet Mazdoor Samity v. State of West Bengal (1996), the Supreme Court averred that it is the government’s responsibility to provide medical aid in the interest of bolstering public health.
As per a 2013 study, more than half of the world’s countries have a guaranteed and specified right to public health and medical care written into their constitutions.
An Act, Ms. Pachauli says, will “legally bind the government” to protect the health of its citizens, and “how much of that is met or not met is a different question”.
Why are people opposed to it?
The staunchest resistance to the Bill has come from private healthcare providers, owing to the ambiguity around who will pay for the mandatory free-of-cost emergency treatment. A pamphlet in circulation across the States, published by a “Joint Action Committee”, lists the Bill’s other alleged shortcomings: that it abdicates the State’s responsibility in providing health protection and puts a larger patient load on the private sector. Ms. Pachauli, however, calls this narrative “misleading” because the Bill is anchored around bolstering public healthcare infrastructure and protecting patients’ rights, with private service providers finding sparse mention.
After protests, the government has agreed to create a fund to reimburse any emergency care offered by the private sector.
Further, doctors argue the Bill is both futile and an exercise in over-regulation. Clinics and hospitals are required to abide by State regulations and norms. The National Human Rights Commission has also proposed a patients’ rights charter for healthcare providers. A designated “right” to health would do little to improve equitable patient access to facilities, just like a mandated “right” to education still suffers from challenges including lacking awareness, poor implementation, bureaucratic difficulties and inability in reaching last-mile access.
On February 17, Chief Minister Gehlot appealed to private hospitals to end their boycott of the Chiranjeevi scheme (among the largest healthcare insurance schemes in the country) and the Rajasthan Government Health Scheme – which offer cashless treatment to private individuals and government employees.
Health activists and civil society members agree the Bill, in its current form, is a “diluted” version of the draft which activists and Jan Swasthya Abhiyan submitted to the government in 2019. For instance, there is no representation of local residents or healthcare workers in the State and district authorities proposed by the Bill. Who will form these authorities and the power that will be delegated to them is a grey area – raising fear of executive overreach and arbitrariness in implementation. The Jaipur Medical Association further critiqued the Bill for a “lack of a legal recourse if a patient’s family wants to approach the court about a medical procedure or treatment”.
Moreover, there’s no mention of a designated timeframe within which the rules must be framed and the Bill loosely mentions the term “guarantee” -- which makes the actual execution of an Act ambiguous. The development of the Human Resource Policy for Health, for instance, and subsequent delivery of health services would be pointless without any clarity on how the government plans to address the shortage of doctors, nurses and auxiliary support staff at the State level.
According to Ms. Pachauli, “there’s much more scope for further improvement to make the Bill robust”.
The Bill was sent to a Select Committee on September 23 to look at ways to amend the legislation, following protests by private healthcare providers. Ms. Pachauli adds that the Select Committee was constituted on January 17 under the chairmanship of the Health Minister of State – after more than three months of being tabled in the Parliament. “The Committee has held two meetings or so as of now, but is yet to give its report.” she says.