Law and Our Rights

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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the
Constitution of the People’s Republic of Bangladesh

Issue No: 75 Human Rights analysis

July 5 , 2008

This week's issue:

Right to have proper medical care
•Human Rights Analysis
•Law Opinion Oli Md. Abdullah Chowdhury
•Law News
•Laws For Everyday Life
•Fact File T he enjoyment of the highest attainable standard of health is one of the fundamental rights of
•Court Corridor every human being without distinction of race, religion, political belief, social and economic
•Rights Column condition. Elites though prefer taking resort to hospitals of Singapore or US, middle class people in
•Law Lexicon Bangladesh often fail to get adequate treatment in the country. Let alone vulnerable people living in
haor or char areas, urban-dwellers often experience tremendous difficulty in accessing government
•Law Week
health service marred by corruption.

Accountability, corruption and the state of

health sector
Back Issues
“Making Governance Work for the Poor”, UK
government's white paper (http://www.dfid.
Law Home gov.uk/wp2006/whitepaper-printer-friendly.
pdf) on international development reveals that
public procurement is a source of corruption.
News Home As referred in the document, Transparency
International's bribe payers' index suggests
that the construction, defence, and health
sectors are highly prone to bribery. However,
corruption not only occurs in procurement,
people often face difficulty in accessing public
health services due to widespread corruption
and lack of accountability.

World Bank's Country Assistance Strategy

(CAS) reveals maternal mortality in Bangladesh Relation between right-holder and duty bearer in a
is high as a result of inadequate access to right-based health service
health services during pregnancy and childbirth
and the poor nutritional status of pregnant women. More than half the children aged 1-3 are
underweight and more than 40% women are severely malnourished.

There is a poor accountability mechanism in the health sector as many of us have read in the
newspapers about the incident took place in Sylhet M A G Osmani Medical College Hospital a few
months back. It has been reported in The Daily Star (April 8, 2008) that 23 patients died since the
trouble began after an intern misbehaved with a pregnant woman. These triggered brawls between
interns and patients' attendants and later the interns went unruly and swooped on patients'
attendants and newsmen at the hospital. Earlier, it has been reported in The Daily Star (April 7,
2008) that some attendants of a pregnant womanRumi Sarker Rumaraised protest as a female intern
started checking the lady at an open space and in presence of attendants of other patients at the
labour ward. When asked to take the patient inside, intern Alo became angry and knocked the
patient on to the floor from the trolley. At about 9 PM Alo, along with some of her fellow interns,
went back to the ward and swooped on Ruma's husband Abdullah. It led to further clashes and the
internees even launched series of attacks on newsmen too.

The incident mentioned above is part of the scenario that prevails in health sector. Similar incidents
also happened in other hospitals, though access to health services is a basic right under international
law. Access to health services is a basic necessity set forth in the constitution of our country,
nevertheless.

MDG and International Human Rights Instruments

Millennium Development Goals (MDG), which are to be achieved by the target date of 2015, form a
blueprint agreed to by all the world's countries and the entire world's leading development

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Law and Our Rights

institutions. Bangladesh though committed to reach the goals by 2015, has much more to do with
health sector. It is particularly important as three (3) goals are directly related to health.

These are Millennium Development Goals related to health care:

* Goal 4: Reduce child mortality
* Goal 5: Improve maternal health
* Goal 6: Combat HIV/AIDS, malaria, and other diseases

Bangladesh has ratified over 12 UN Human

Rights treaties and four optional protocols and
also became a member of the UN Human
Rights Council in May 2006. It has been stated
in Article 25 of Universal Declaration of Human
Rights (UDHR), “Everyone has the right to a
standard of living adequate for the health and
well-being of himself and of his family,
including food, clothing, housing and medical
care and necessary social services, and the
right to security in the event of unemployment,
sickness, disability, widowhood, old age or
other lack of livelihood in circumstances
beyond his control”.

Again, UN Convention on the Rights of the

Child (CRC) lays the responsibility with the
state. “States Parties recognize the right of the
child to the enjoyment of the highest attainable
standard of health and to facilities for the
treatment of illness and rehabilitation of health.
States Parties shall strive to ensure that no
child is deprived of his or her right of access to
such health care services” said in Article 24 of
CRC.

Photo: www-cartoonstock-com
Moreover, Bangladesh also singed International
Covenant on Economic, Social and Cultural Rights (ICESCR).”The States Parties to the present
Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health” said in Article 12 of ICESCR.

Furthermore, Bangladesh signed and ratified Convention on Elimination of all forms of Discrimination
against Women (CEDAW). Non-discrimination and equal access for both men and women to health
services reflected in Article 12(1), “States Parties shall take all appropriate measures to eliminate
discrimination against women in the field of health care in order to ensure, on a basis of equality of
men and women, access to health care services, including those related to family planning”. State
responsibility regarding women health issue is further elaborated in Article 12(2), “Notwithstanding
the provisions of paragraph I of this article, States Parties shall ensure to women appropriate
services in connection with pregnancy, confinement and the post-natal period, granting free services
where necessary, as well as adequate nutrition during pregnancy and lactation”.

Constitution and domestic law

State has responsibility towards citizen in providing health services. It has been stated in Article 15
(a) of the constitution of Bangladesh,” It shall be a fundamental responsibility of the State to attain,
through planned economic growth, a constant increase of productive forces and a steady
improvement in the material and cultural standard of living of the people, with a view to securing to
its citizens the provision of the basic necessities of life, including food, clothing, shelter, education
and medical care”.

Though there are no existing laws providing remedies for medical negligence, consumers still can
claim compensation. If negligence results in grievous hurt, it is punishable under the Penal Code. It
has been asserted in Section 338 of the Code, “Whoever causes grievous hurt to any person by
doing any act so rashly or negligently as to endanger human life or the personal safety of others
shall be punished with imprisonment of either description for a term which may extend to two years,
or with fine which may extend to five thousand taka, or with both”.

When people die due to negligent act, imprisonment might extend to a term of 5 years. “Whoever
causes the death of any person by doing any rash or negligent act not amounting to culpable
homicide shall be punished with imprisonment of either description for a term which may extend to
five years, or with fine, or with both”- said in Section 304(a) of the Penal Code.

Although Bangladesh Medical and Dental Council (http://www.bmdc. org.bd/) was constituted under
the Medical and Dental Council Act (Act No. XVI of 1980) to look after public interest, the council has
so far failed to convince right-holders of health services. Particularly, there is hardly any evidence
where council has acted on public interest if there is a conflict between practitioners and general
public.

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Law and Our Rights

“Gross negligence in respect of his professional duties to his patient maybe regarded as misconduct
sufficient to justify the suspension or the removal of the name of a Medical/Dental practitioner from
the Register” stated in Section 5(A) of Code of Medical Ethics.

However, there is little scope for public in existing laws to ensure accountability of health service
providers. There are laws and ordinance for specific diseases [like Epidemic Disease Act (1897),
Prevention of Malaria Ordinance (1978), Eye Surgery (Restriction) Ordinance (1960)], those laws,
nevertheless do not deal with the rights of patients or other stakeholders of health service. Quality of
services, therefore, remains poor at Thana Health Complex and even in district hospitals as service
providers are not accountable to right-holders.

Scope of work
Bangladesh government is committed to eradicate extreme poverty by 2015 and has prepared
poverty reduction strategy. Moreover, international community has committed resources in this
regard and UK Department for International Development (DFID) has awarded Harewell
International a contract to manage a challenge fund (http://shiree.org) of £65 million aiming at
assisting Bangladeshi and international NGOs in the graduation of over 1 million extreme poorest
people from poverty by 2015. In supporting the government's reform concept for the public health
sector, the EC's overall objective is also to improve the health status of population - particularly the
poor, women and children in both urban and rural areas.

NGOs could take this opportunity to organise consumers and right-holders and create a platform to
make service providers of health accountable. NGOs nowadays operate clinics in both urban and
rural areas and there must be an accountability mechanism in those clinics too. Involvement of civil
society organisations, local government representatives, journalists and legal practitioners will
strengthen the platform. It might pave the way to accessing health services for extremely poor
people.

The writer is human rights worker.

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