SIKKIM GOVERNMENT LAW COLLEGE

LOWER BURTUK, GANGTOK, SIKKIM

“Right to health and need of Legal Control”

Submitted by:
Nikita Gurung
Roll no.18GLB030
Submitted To:
Dr. Karma D. Denzongpa
Asst, Professor

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 Table of Contents

SI.no Topic Page.no

1 Introduction 3
2 WHAT IS THE RIGHT TO 4-5
HEALTH?

3 Common misconceptions about the 5-6

right to health:

4 HOW DOES THE RIGHT TO 6-12

HEALTH APPLY TO SPECIFIC
GROUPS?

5 NEED OF LEGAL CONTROL 12-21

6 Conclusion 21-22
7 References 22

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 Introduction
As human beings, our health and the health of those we care about is a matter of daily concern.
Regardless of our age, gender, socio-economic or ethnic background, we consider our health
to be our most basic and essential asset. Ill health, on the other hand, can keep us from going
to school or to work, from attending to our family responsibilities or from participating fully
in the activities of our community. By the same token, we are willing to make many sacrifices
if only that would guarantee us and our families a longer and healthier life. In short, when we
talk about well-being, health is often what we have in mind. The right to health is a fundamental
part of our human rights and of our understanding of a life in dignity. The right to the enjoyment
of the highest attainable standard of physical and mental health, to give it its full name, is not
new. Internationally, it was first articulated in the 1946 Constitution of the World Health
Organization (WHO), whose preamble defines health as “a state of complete physical, mental
and social well-being and not merely the absence of disease or infirmity”. The preamble further
states that “the enjoyment of the highest attainable standard of health is one of the fundamental
rights of every human being without distinction of race, religion, political belief, economic or
social condition.” The 1948 Universal Declaration of Human Rights also mentioned health as
part of the right to an adequate standard of living (art. 25).

The right to health was again recognized as a human right in the 1966 International Covenant
on Economic, Social and Cultural Rights. Since then, other international human rights treaties
have recognized or referred to the right to health or to elements of it, such as the right to medical
care. The right to health is relevant to all States: every State has ratified at least one international
human rights treaty recognizing the right to health. Moreover, States have committed
themselves to protecting this right through international declarations, domestic legislation and
policies, and at international conferences. In recent years, increasing attention has been paid to
the right to the highest attainable standard of health, for instance by human rights treaty
monitoring bodies, by WHO and by the Commission on Human Rights (now replaced by the
Human Rights Council), which in 2002 created the mandate of Special Rapporteur on the right
of everyone to the highest attainable standard of physical and mental health. These initiatives
have helped clarify the nature of the right to health and how it can be achieved. This fact sheet
aims to shed light on the right to health in international human rights law as it currently stands,
amidst the plethora of initiatives and proposals as to what the right to health may or should be.
Consequently, it does not purport to provide an exhaustive list of relevant issues or to identify
specific standards in relation to them. The fact sheet starts by explaining what the right to health

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is and illustrating its implications for specific individuals and groups, and then elaborates upon
States' obligations with respect to the right. It ends with an overview of national, regional and
international accountability and monitoring mechanisms.

WHAT IS THE RIGHT TO HEALTH?

The right to health is an inclusive right. We frequently associate the right to health with access
to health care and the building of hospitals. This is correct, but the right to health extends
further. It includes a wide range of factors that can help us lead a healthy life. The Committee
on Economic, Social and Cultural Rights, the body responsible for monitoring the International
Covenant on Economic, Social and Cultural Rights,1calls these the “underlying determinants
of health”. They include:

• Safe drinking water and adequate sanitation;

• Safe food;
• Adequate nutrition and housing;
• Healthy working and environmental conditions;
• Health-related education and information;
• Gender equality.

• The right to health contains freedoms. These freedoms include the right to be free
from non-consensual medical treatment, such as medical experiments and research or
forced sterilization, and to be free from torture and other cruel, inhuman or degrading
treatment or punishment.
• The right to health contains entitlements. These entitlements include:
• The right to a system of health protection providing equality of opportunity for
everyone to enjoy the highest attainable level of health;
• The right to prevention, treatment and control of diseases; Ø Access to essential
medicines;
• Maternal, child and reproductive health;
• Equal and timely access to basic health services;

1
The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16
December 1966. It entered into force in 1976 and by 1 December 2007 had been ratified by 157 States.

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• The provision of health-related education and information;
• Participation of the population in health-related decisionmaking at the national and
community levels.
• Health services, goods and facilities must be provided to all without any discrimination.
Non-discrimination is a key principle in human rights and is crucial to the enjoyment
of the right to the highest attainable standard of health (see section on non-
discrimination below).
• All services, goods and facilities must be available, accessible, acceptable and of good
quality.
• Functioning public health and health-care facilities, goods and services must be
available in sufficient quantity within a State.
• They must be accessible physically (in safe reach for all sections of the population,
including children, adolescents, older persons, persons with disabilities and other
vulnerable groups) as well as financially and on the basis of non-discrimination.
Accessibility also implies the right to seek, receive and impart health-related
information in an accessible format (for all, including persons with disabilities), but
does not impair the right to have personal health data treated confidentially.
• The facilities, goods and services should also respect medical ethics, and be gender-
sensitive and culturally appropriate. In other words, they should be medically and
culturally acceptable.
• Finally, they must be scientifically and medically appropriate and of good quality. This
requires, in particular, trained health professionals, scientifically approved and
unexpired drugs and hospital equipment, adequate sanitation and safe drinking water.

Common misconceptions about the right to health:

• The right to health is NOT the same as the right to be healthy. A common
misconception is that the State has to guarantee us good health. However, good health
is influenced by several factors that are outside the direct control of States, such as an
individual’s biological make-up and socio-economic conditions. Rather, the right to
health refers to the right to the enjoyment of a variety of goods, facilities, services and

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 conditions necessary for its realization. This is why it is more accurate to describe it as
the right to the highest attainable standard of physical and mental health, rather than an
unconditional right to be healthy.

• The right to health is NOT only a programmatic goal to be attained in the long term.
The fact that the right to health should be a tangible programmatic goal does not mean
that no immediate obligations on States arise from it. In fact, States must make every
possible effort, within available resources, to realize the right to health and to take steps
in that direction without delay. Notwithstanding resource constraints, some obligations
have an immediate effect, such as the undertaking to guarantee the right to health in a
non-discriminatory manner, to develop specific legislation and plans of action, or other
similar steps towards the full realization of this right, as is the case with any other
human right. States also have to ensure a minimum level of access to the essential
material components of the right to health, such as the provision of essential drugs and
maternal and child health services. (See chapter III for more details.)
• A country’s difficult financial situation does NOT absolve it from having to take action
to realize the right to health. It is often argued that States that cannot afford it are not
obliged to take steps to realize this right or may delay their obligations indefinitely.
When considering the level of implementation of this right in a particular State, the
avail
ability of resources at that time and the development context are taken into account.
Nonetheless, no State can justify a failure to respect its obligations because of a lack of
resources. States must guarantee the right to health to the maximum of their available
resources, even if these are tight. While steps may depend on the specific context, all
States must move towards meeting their obligations to respect, protect and fulfil (see
page 25 for further details).

HOW DOES THE RIGHT TO HEALTH APPLY TO SPECIFIC

GROUPS?

Some groups or individuals, such as children, women, persons with disabilities or persons
living with HIV/AIDS, face specific hurdles in relation to the right to health. These can
result from biological or socio-economic factors, discrimination and stigma, or, generally,
a combination of these. Considering health as a human right requires specific attention to
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different individuals and groups of individuals in society, in particular those living in
vulnerable situations. Similarly, States should adopt positive measures to ensure that
specific individuals and groups are not discriminated against. For instance, they should
disaggregate their health laws and policies and tailor them to those most in need of
assistance rather than passively allowing seemingly neutral laws and policies to benefit
mainly the majority groups. 12 To illustrate what the standards related to the right to health
mean in practice, this chapter focuses on the following groups: women, children and
adolescents, persons with disabilities, migrants and persons living with HIV/AIDS.
Women:
Convention on the Elimination of All Forms of Discrimination against Women, 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.
2. Notwithstanding the provisions of paragraph 1 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.
International Covenant on Economic, Social and Cultural Rights, article 10 (2):
Special protection should be accorded to mothers during a reasonable period before and
after childbirth. During such period working mothers should be accorded paid leave or
leave with adequate social security benefits. Women are affected by many of the same
health conditions as men, but women experience them differently. The prevalence of
poverty and economic dependence among women, their experience of violence, gender bias
in the health system and society at large, discrimination on the grounds of race or other
factors, the limited power many women have over their sexual and reproductive lives and
their lack of influence in decision-making are social realities which have an adverse impact
on their health. So, women face particular health issues and particular forms of
discrimination, with some groups, including refugee or internally displaced women,
women in slums and suburban settings, indigenous and rural women, women with
disabilities or women living with HIV/AIDS (see section below on HIV/AIDS), facing
multiple forms of discrimination, barriers and marginalization in addition to gender
discrimination. Both the International Covenant on Economic, Social and Cultural Rights
and the Convention on the Elimination of All Forms of Discrimination against Women
require the elimination of discrimination against women in health care as well as guarantees
of equal access for women and men to health-care services. Redressing discrimination in
all its forms, including in the provision of health care, and ensuring equality between men

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 and women are fundamental objectives of treating health as a human right. In this respect,
the Convention on the Elimination of All Forms of Discrimination against Women (art. 14)
specifically calls upon States to ensure that “women in rural areas… participate in and
benefit from rural development” and “have access to adequate health-care facilities,
counselling and services in family planning.” The Committee on the Elimination of
Discrimination against Women further requires States parties to ensure women have
appropriate services in connection with pregnancy, childbirth and the post-natal period,
including family planning and emergency obstetric care. The requirement for States to
ensure safe motherhood and reduce maternal mortality and morbidity is implicit here.
Sexual and reproductive health is also a key aspect of women’s right to health. States should
enable women to have control over and decide freely and responsibly on matters related to
their sexuality, including their sexual and reproductive health, free from coercion, lack of
information, discrimination and violence. The Programme of Action of the International
Conference on Population and Development2 and the Beijing Platform for Action13
highlighted the right of men and women to be informed and to have access to safe, effective,
affordable and acceptable methods of family planning of their choice, and the right of
access to appropriate health-care services that will enable women to go safely through
pregnancy and childbirth and provide couples with the best chance of having a healthy
infant.

Children and adolescents:

Children face particular health challenges related to the stage of their physical and mental
development, which makes them especially vulnerable to malnutrition and infectious
diseases, and, when they reach adolescence, to sexual, reproductive and mental health
problems. Most childhood deaths can be attributed to a few major causes acute respiratory
infections, diarrhea, measles, malaria and malnutrition or a combination of these. In this
regard both the International Covenant on Economic, Social and Cultural Rights and the
Convention on the Rights of the Child recognize the obligation on States to reduce infant
and child mortality, and to combat disease and malnutrition. In addition, a baby who has
lost his or her mother to pregnancy and childbirth complications has a higher risk of dying
in early childhood. Infants’ health is so closely linked to women’s reproductive and sexual
health that the Convention on the Rights of the Child directs States to ensure access to

2
Report of the International Conference on Population and Development, Cairo, 5–13 September 1994
(United Nations publication, Sales N° E.95.XIII.18).

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 essential health services for the child and his/her family, including pre- and post-natal care
for mothers. Children are also increasingly at risk because of HIV infections occurring
mostly through mother-to-child transmission (a baby born to an HIV positive mother has a
25 to 35 per cent chance of becoming infected during pregnancy, childbirth or
breastfeeding).

Accordingly, States should take measures to prevent such transmission through, for
instance: medical protocols for HIV testing during pregnancy; information campaigns
among women on these forms of transmission; the provision of affordable drugs; and the
provision of care and treatment to HIV-infected women, their infants and families,
including counselling and infant feeding options. Governments and health professionals
should treat all children and adolescents in a non-discriminatory manner. This means that
they should pay particular attention to the needs and rights of specific groups, such as
children belonging to minorities or indigenous communities, intersex children 3and,
generally, young girls and adolescent girls, who in many contexts are prevented from
accessing a wide range of services, including health care. More specifically, girls should
have equal access to adequate nutrition, safe environments, and physical and mental health
services. Appropriate measures should be taken to abolish harmful traditional practices that
affect mostly girls’ health, such as female genital mutilation, early marriage, and
preferential feeding and care of boys.

Children who have experienced neglect, exploitation, abuse, torture or any other form of
cruel, inhuman or degrading treatment or punishment also require specific protection by
States. The Convention on the Rights of the Child (art. 39) stresses the responsibility of the
State for promoting children’s physical and psychological recovery and social
reintegration. While adolescents are in general a healthy population group, they are prone
to risky behaviour, sexual violence and sexual exploitation. Adolescent girls are also
vulnerable to early and/or unwanted pregnancies. Adolescents’ right to health is therefore
dependent on health care that respects confidentiality and privacy and includes appropriate
mental, sexual and reproductive health services and information. Adolescents are,
moreover, particularly vulnerable to sexually transmitted diseases, including HIV/AIDS.
In many regions of the world, new HIV infections are heavily concentrated among young

3
Intersex children are born with internal and external sex organs that are neither exclusively male nor
exclusively female.

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 people (15–24 years of age).4Effective prevention programmes should address sexual
health and ensure equal access to HIV-related information and preventive measures such
as voluntary counselling and testing, and affordable contraceptive methods and services.

Persons with disabilities:

Even though more than 650 million people worldwide have a disability of one form or
another (two thirds of whom live in developing countries), most have long been neglected
and marginalized by the State and society. It is only in recent years that persons with
disabilities have brought about a paradigm shift in attitudes towards them. This has seen a
move away from regarding them as “objects” of charity and medical interventions towards
their empowerment as “subjects” of human rights, including but not limited to the right to
health. The right to health of persons with disabilities cannot be achieved in isolation. It is
closely linked to non-discrimination and other principles of individual autonomy,
participation and social inclusion, respect for difference, accessibility, as well as equality
of opportunity and respect for the evolving capacities of children.5Persons with disabilities
face various challenges to the enjoyment of their right to health. For example, persons with
physical disabilities often have difficulties accessing health care, especially in rural areas,
slums and suburban settings; persons with psychosocial disabilities may not have access to
affordable treatment through the public health system; women with disabilities may not
receive gender-sensitive health services. Medical practitioners sometimes treat persons
with disabilities as objects of treatment rather than rights-holders and do not always seek
their free and informed consent when it comes to treatments. Such a situation is not only
degrading, it is a violation of human rights under the Convention on the Rights of Persons
with Disabilities and unethical conduct on the part of the medical professional. Persons
with disabilities are also disproportionately susceptible to violence and abuse. They are
victims of physical, sexual, psychological and emotional abuse, neglect, and financial
exploitation, while women with disabilities are particularly exposed to forced sterilization
and sexual violence. Violence against persons with disabilities often occurs in a context of
systemic discrimination against them in which there is an imbalance of power. It is now

4
6 Joint United Nations Programme on HIV/AIDS and World Health Organization, AIDS epidemic update:
December 2006, p. 9.
5
These and other principles are reflected in art. 3 of the Convention on the Rights of Persons with Disabilities,
which was adopted by the United Nations General Assembly in its resolution 61/106 of 13 December 2006.

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 acknowledged that it is not the disability itself that may put people with disabilities at risk,
but the social conditions and barriers they face, such as stigma, dependency on others for
care, gender, poverty or financial dependency.

By way of illustration, one can note the neglect that persons with psychosocial or
intellectual disabilities suffer. In many cases, they are treated without their free and
informed consent a clear and serious violation of their right to health. They are, moreover,
often locked up in institutions simply on the basis of disability, which can have serious
repercussions for their enjoyment of the right to health and other rights. In other cases, these
disabilities are often neither diagnosed nor treated or accommodated for, and their
significance is generally overlooked. Adequate policies, programmes, laws and resources
are lacking for instance, in 2001, most middle- and low-income countries devoted less than
1 per cent of their health expenditures to mental health.6 As a result, mental health care,
including essential medication such as psychotropic drugs, is inaccessible or unaffordable
to many. Access to all types of health care for persons with psychosocial or intellectual
disabilities is complicated by the stigma and discrimination they suffer, contrary to the
obligation on States to provide access to health care on an equal basis. The newly adopted
Convention on the Rights of Persons with Disabilities requires States to promote, protect
and ensure the full and equal enjoyment of all human rights and fundamental freedoms by
persons with disabilities, including their right to health, and to promote respect for their
inherent dignity (art. 1). Article 25 further recognizes the “right to the enjoyment of the
highest attainable standard of health without discrimination” for persons with disabilities
and elaborates upon measures States should take to ensure this right. These measures
include ensuring that persons with disabilities have access to and benefit from those
medical and social services needed specifically because of their disabilities, including early
identification and intervention, services designed to minimize and prevent further
disabilities as well as orthopedic and rehabilitation services, which enable them to become
independent, prevent further disabilities and support their social integration.7 Similarly,
States must provide health services and centers as close as possible to people’s own
communities, including in rural areas.

6
World Health Organization, Mental Health Atlas: 2005 (Geneva, 2005).
7
See Committee on Economic, Social and Cultural Rights, general comment N° 5 (1994) on people with
disabilities, and arts. 25 (b) and 26 of the Convention on the Rights of Persons with Disabilities

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 Furthermore, the non-discrimination principle requires that persons with disabilities should
be provided with “the same range, quality and standard of free or affordable health care
and programmes as provided to other persons”, and States should “prevent discriminatory
denial of health care or health services or food or fluids on the basis of disability” (see
generally arts. 25 and 26 of the Convention). Importantly, States must require health
professionals to provide care of the same quality to persons with disabilities as to others,
including on the basis of free and informed consent. To this end, States are required to train
health professionals and to set ethical standards for public and private health care. The
Convention on the Rights of the Child (art. 23) recognizes the right of children with
disabilities to special care and to effective access to health-care and rehabilitation services.

Migrants:
Migration has become a major political, social and economic phenomenon, with significant
human rights consequences. The International Organization for Migration estimates that,
today, there are nearly 200 million international migrants worldwide. According to the
International Labour Organization, 90 million of them are migrant workers. Although
migration has implications for the right to health in both home and host countries, the focus
here is on migrants in host countries. Their enjoyment of the right to health is often limited
merely because they are migrants, as well as owing to other factors such as discrimination,
language and cultural barriers, or their legal status. While they all face particular problems
linked to their specific status and situation (undocumented or irregular migrants and
migrants held in detention being particularly at risk),8many migrants will face similar
obstacles to realizing their human rights, including their right to health. States have
explicitly stated before international human rights bodies or in national legislation that they
cannot or do not wish to provide the same level of protection to migrants as to their own
citizens. Accordingly, most countries have defined their health obligations towards non-
citizens in terms of “essential care” or “emergency health care” only. Since these concepts

8
Persons granted refugee status or internally displaced persons do not fall into the category of migrants. See
“Specific groups and individuals: migrant workers” (E/CN.4/2005/85).

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mean different things in different countries, their interpretation is often left to individual
health-care staff. Practices and laws may therefore be discriminatory.

The International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (art. 28) stipulates that all migrant workers and their families
have the right to emergency medical care for the preservation of their life or the avoidance
of irreparable harm to their health. Such care should be provided regardless of any
irregularity in their stay or employment. The Convention further protects migrant workers
in the workplace and stipulates that they shall enjoy treatment not less favorable than that
which applies to nationals of the State of employment in respect of conditions of work,
including safety and health (art. 25). The Committee on the Elimination of Racial
Discrimination, in its general recommendation N° 30 (2004) on non-citizens, and the
Committee on Economic, Social and Cultural Rights, in its general comment N° 14 (2000)
on the right to the highest attainable standard of health, both stress that States parties should
respect the right of non-citizens to an adequate standard of physical and mental health by,
inter alia, refraining from denying or limiting their access to preventive, curative and
palliative health services. The Special Rapporteur on Health has also stressed that sick
asylum-seekers or undocumented persons, as some of the most vulnerable persons within
a population, should not be denied their human right to medical care. Finally, migrants’
right to health is closely related to and dependent on their working and living conditions
and legal status. In order to comprehensively address migrants’ health issues, States should
also take steps to realize their rights to, among other things, adequate housing, safe and
healthy working conditions, an adequate standard of living, food, information, liberty and
security of person, due process, and freedom from slavery and compulsory labour.

Persons living with HIV/AIDS:

More than 25 million people have died of AIDS in the past 25 years, making it one of the
most destructive pandemics in recent times. There are now about 33 million people living
with HIV/AIDS. Since emerging as a major health emergency, the epidemic has had a
serious and, in many places, devastating effect on human rights and development. It is
generally recognized that HIV/AIDS raises many human rights issues. Conversely,
protecting and promoting human rights are essential for preventing the transmission of HIV

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 and reducing the impact of AIDS on people’s lives. Many human rights are relevant to
HIV/AIDS, such as the right to freedom from discrimination, the right to life, equality
before the law, the right to privacy and the right to the highest attainable standard of health.
The links between the HIV/AIDS pandemic and poverty, stigma and discrimination,
including that based on gender and sexual orientation, are widely acknowledged. The
incidence and spread of HIV/AIDS are disproportionately high among certain populations,
including women,9 children, those living in poverty, indigenous peoples, migrants, men
having sex with men, male and female sex workers, refugees and internally displaced
people, and in certain regions, such as sub-Saharan Africa. The discrimination they suffer
makes them (more) vulnerable to HIV infection. At the same time, the right to health of
persons living with HIV/AIDS is undermined by discrimination and stigma. For example,
fear of being identified with HIV/AIDS may stop people who suffer discrimination, such
as sex workers or intravenous drug users, from voluntarily seeking counselling, testing or
treatment. Halting and reversing global epidemics relies heavily on addressing
discrimination and stigma. Importantly, States should prohibit discrimination on the
grounds of health status, including actual or presumed HIV/AIDS status, and protect
persons living with HIV/AIDS from discrimination. State legislation, policies and
programmes should include positive measures to address factors that hinder the equal
access of these vulnerable populations to prevention, treatment and care, such as their
economic status. Universal access to care and treatment is also an important component of
the right to health for persons living with HIV/AIDS. Equally, it is important to ensure the
availability of medicines and strengthen HIV prevention by, for instance, providing
condoms and HIV-related information and education, and preventing mother-to-child
transmission. The International Guidelines on HIV/AIDS and Human Rights provide
further guidance on ensuring the rights of persons living with HIV/AIDS.10

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2 Women are today more vulnerable to infection than men. See Joint United Nations Programme on
HIV/AIDS, Report on the global AIDS epidemic (Geneva, 2006).
10
See Joint United Nations Programme on HIV/AIDS and Office on the United Nations High Commissioner for
Human Rights, International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version (United
Nations publication, Sales N° E.06.XIV.4), General Assembly resolution 60/1 of 16 September 2005 on the 2005
World Summit Outcome and General Assembly resolution 60/224 of 23 December 2005.

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 NEED OF LEGAL CONTROL

For all aspects of health, there are binding rules that govern the rights and responsibilities of
governments, health workers, companies, civil society and a country’s population. Together
these rules make up the legal framework, or legal architecture for health. They take many
forms including: statutory laws, regulatory and administrative laws, contracts, case law, and
customary laws. Who is involved in making these rules, and the form they take, differs from
country to country.

Health laws are used to formalize commitment to goals, such as the goal of universal health
coverage, creating a drive for action. To enable cooperation and achieve health goals, people
use law to create different organizations (such as hospitals) and relationships (such as contracts
for providing health services). In turn, organizations (whether health ministries, the private
sector or civil society) have mandates, policies and strategies based on legal
rulesthatguidetheirwork.
There are also many rules that structure what health organizations and individuals should do,
and what they may not do. This interaction between different health laws results in health
system functions being carried out and health products and services being delivered.
The past few decades have witnessed a series of high-profile inquiries that cast a harmful
cloud over the medical profession and provoked demands for strict regulation. Somehow,
a balance must be struck whereby the public can be confident that doctors practise
competently, with due regard to ethical and technical standards, yet the regulations are not
so overwhelming. The current regulatory framework explores exclusion from the
workplace, serious professional misconduct and seriously deficient performance. The
Medical Council of India deals with a large number of regulatory cases each year, of which
small proportions are appealed. As well as providing valuable insight into judicial thought,
case law in this area is helpful in understanding the balance between social policy and
medical regulation.

Medical profession has its own ethical parameters and code of conduct. However,
negligence by doctors has to be determined by judges who are not trained in medical
science. They rely on experts’ opinion and decide on the basis of basic principles of
reasonableness and prudence. There is often a thin dividing line between the three levels of

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negligence; lata culpa, gross neglect; levis culpa, ordinary neglect; and levissima culpa,
slight neglect. The level of negligence depends on the entire context – which includes the
place, the time, the individuals involved, and the level of complications. The difference
between medical negligence and medical error is well-settled, and the principles are well-
founded being clearly laid down in numerous cases by the Supreme Court. Thus, there is a
need to appreciate this differentiation by the society so that doctors do not get indicted for
impractical reasons.

The duties which a doctor owes to his patients are a duty of care in deciding whether to
undertake the case, a duty of care in deciding what treatment to give, and a duty of care in
the administration of that treatment. A breach of any of these duties gives a right of action
for negligence to the patient. A doctor should know that the plaintiff (patient) in order to
succeed in the action of establishing negligence must show that the damage would not have
occurred but for the defendant's (doctor) negligence; or the defendant's negligence
materially contributed to or materially increased the risk of injury; or if the claim is for
negligent nondisclosure, had he/she been adequately informed he/she would not have
accepted the treatment.

A victim can seek any of the following actions against a negligent medical professional.

a) Compensatory action: Seeking monetary compensation before the civil courts, high
court or the consumer dispute redressal forum under the constitutional law, law of torts,
law of contract, and the Consumer Protection Act.

b) Punitive action: Filing a criminal complaint against the doctor under the Indian Penal
Code (IPC).

c) Disciplinary action: Moving the professional bodies like Indian Medical Council/State
Medical Council seeking disciplinary action against the health-care provider concerned.

d) Recommendatory action: Lodging complaint before the National/State Human Rights

Commission seeking compensation.

Accountability of Medical Professionals: It has been argued by the medical association

in Shantha's case (1996, AIR 550) that the medical practitioner should be kept out of the
purview of the Consumer Protection Act 1986 as there is scope for disciplinary action under
the Medical Council Act for violating the code of medical ethics and for the breach of duty

16
to exercise reasonable care and skill in rendering medical service to the patient. The
Supreme Court held that the medical practitioners are not immune from a claim for
damages for negligence. The fact that they are governed by the Medical Council Act and
are subject to the disciplinary control of the medical council is no solace to the person who
has suffered due to their negligence, and the right of such person to seek redress is not
affected.

Accountability of Hospitals: Hospitals liability with respect to medical negligence can be

direct liability or vicarious liability. Direct liability refers to the deficiency of the hospital
itself in providing safe and suitable environment for treatment as promised. Vicarious
liability means the liability of an employer for the negligent act of its employees. An
employer is responsible not only for his own acts of commission and omission but also for
the negligence of its employees, so long as the act occurs within the course and scope of
their employment.

Common Errors by Medical Professionals: Patients sue because of a feeling that they
were not heard, that their needs were not attended to, and that nobody seemed to care, and
as a result, a bad outcome resulted due to a mistake or negligence. Some of the instances
where errors do happen by medical professionals are as follows:

a) Avoidance: Compassionate gestures count. If a hospitalized patient has a bad outcome,

some physicians may avoid making rounds in the presence of relatives. It is important
to let the patient and their caregivers to know that as a treating doctor their problems
are understood. It is a good practice to maintain eye contact while addressing the patient
and put a comforting hand on the individual's arm (comforting touch).

b) Defensive medicine: It is better to avoid practicing defensive medicine. Particularly

when affordability is an issue, victim is very likely to complain. Moreover, it amounts
to medical malpractice (a medical practitioner intentionally advising unwanted
investigation).

c) Failure to communicate: Communicate clearly and effectively. Take time to ensure

your patient understands their diagnosis, treatment, and medication plans, and then
check their understanding by asking them to explain it back. This ensures instructions
are properly followed and demonstrates your care toward patient.

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d) Failure to diagnose: Failure to diagnose is the number one reason a physician gets
sued for medical malpractice. A techno-savvy patient may give, explain, ask more
information or psychologically less sophisticated patient may withhold the information
and make diagnosis difficult.

e) Failure to identify a complication: If a certain complication is a known risk, it should

be on the consent form for the medical procedure. However, the consent form need not
list every single complication that has ever occurred for that procedure. Often there are
mistakes in communicating the complications. If, for example, the complication is
known to occur 10% of the time during a given procedure but the consent form states
that it occurs only 1% of the time, then the consent form was wrong.

f) Inadequate follow up: There are instances when tests results are not received by the
ordering physician. On other occasions, patients do not follow through with tests as
directed or the results come in are filed away before the physician reviews them, and
the patient is not briefed about the findings. It is essential that physicians and their staffs
are able to track the status of these orders to make sure that none are overlooked or
forgotten. Another aspect of care needing better follow-up involves referrals to
specialists. Every step has to be documented not only for preventing medico-legal
issues but also for good patient care as well.

g) Patient time: The time spent allowing the patient to fully explain his/her concern
determines the physician's ability to show concern, empathy, and likeability. The longer
the quality time a physician spends with the patient, the less likely will that physician
be sued.

h) Prescribing errors: Before prescribing any medication, a physician should be aware

of all medications the patient is taking, including over-the-counter drugs and alternative
medicines. Physicians should reinforce the importance of taking the medications only
as prescribed. Patients should be advised that if they feel any medication is not having
its intended effect, they should immediately contact their physician. An important way
to prevent inadvertent drug interactions is by working in concert with hospital
pharmacists. Avoid handwriting prescriptions and utilize instead electronic medical
recording with electronic prescribing.

i) Prevention of Medical negligence: In recent times, medical science has witnessed

exponential technological progress. However, health-care delivery remains very much

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 a human endeavour. Evidence shows that errors are often the result of not from a lack
of knowledge but from the mindless application of unexamined habits and the
interference of unexamined emotions.

j) Asset protection and indemnity: It is vital to the survival of physicians to develop an

asset protection plan, in addition to professional medical liability insurance. Not only
does a malpractice lawsuit reduce the physician's ability to make a living in medicine
but also it can adversely impact or devastate both earned and invested assets. There are
two categories of professional indemnity such as personal or individual: This takes care
of the risk of liability of the doctor and his qualified assistant. Errors and omissions
policy: This covers an institution, nursing home, or hospital along with its staff
members. If a doctor is the owner of a hospital/institution, it is recommended to take
both individual and error policy as the hospital/institution is a separate legal entity and
often can be made a party to medico-legal case.

k) Burden of Proof: The court has held the opinion that medical negligence has to be
established and cannot be presumed. In cases of medical negligence, the patient must
establish her/his claim against the doctor. The burden of proof is correspondingly
greater on the person who alleges negligence against a doctor. A doctor can be held
liable for negligence only if one can prove that she/he is guilty of a failure that no doctor
with ordinary skills would be guilty of if acting with reasonable care. The burden of
proof of negligence, carelessness, or insufficiency generally lies with the complainant.
The law requires a higher standard of evidence than otherwise to support an allegation
of negligence against a doctor. In Bimalesh Chatterjee case, it was held that the onus of
proving negligence and the resultant deficiency in service was clearly on the
complainant. When the damage is too remote, it is not considered as an immediate result
of medical negligence.

l) Change of attitude: Change is the unchangeable truth in human life. A readiness to

change can prevent medical errors and improve the quality care of a doctor. Self-
awareness and attitudinal changes have been found to be beneficial and recommended.
They are as follows:

• Always to do best: A treating doctor should not let fatigue or anything else gets
in the way of doing your work. While no one is perfect, many medical mistakes
that end up in malpractice suits can be avoided by being conscientious.

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• Apology: When physicians are honest about medical errors and apologize to the
patient, the overall cost of medical malpractice is reduced in the end. However,
it depends on the type of error (gross and real), motive of the victim (non-
mischievous), and situational influences (indefensible).

• Blaming others: One should refrain from blaming other health-care providers
for adverse outcomes. The latter can happen despite everyone providing
reasonable care. They can be called for evidence either as a witness or as an
expert.

• Clinical guidelines: Adherence to clinical guidelines is an effective way to

improve quality care and reduce variation in care. Clinical guidelines have been
systematically developed nationally and globally to assist clinical decision-
making (practice of evidence-based medicine). In medical negligence claims
and in court, these guidelines may act as a source of information, provided they
are the product of a recognized body and are deemed reliable. They can be seen
as normative standards and are used as explicit standards of care at the time of
the index clinical event and also to assess the degree to which a questionable
practice was in line with accepted standards.

• Documentation: If the treating doctor does not document something happened,

it is difficult to prove it occurred. Charting accurately and thoroughly can help
to understand what happened to the patient. In addition, it will help in answering
the questions raised about duty of care when called for a deposition months or
years after an event has occurred. One cannot rely on their memory for the facts.
Regardless of the system used, the purpose of documentation, from a legal
perspective, is always to accurately and completely record the care given to
patients, as well as their response to that care. Documentation has legal
credibility when it is contemporaneous, accurate, truthful, and appropriate.

• Empathy: Patients want to believe they are the most important person that
doctor will see that day and the doctor focuses 100% on them. While this is not
feasible, taking time to think like a patient and understand the condition from
their perspective can help in becoming more empathetic physician and build a
better relationship. People are less likely to sue a physician with whom they
have a positive relationship, even if something goes wrong.

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• Expectations: Medical malpractice lawsuits are not quick. It could take years
after an incident for a malpractice case to be resolved. Malpractice cases have
to go through a long process including discovery, which is the investigation
process. It could take months for this phase alone. While in the midst of a
malpractice case, one needs to stay focused on other areas of your life. The
support system needs to be mobilized and obsessing over the case should be
avoided. The medical malpractice stress syndrome is real. It is experienced to
some degree by all physicians who are sued.

• Hospital policies: If the physician follows hospital policy regarding treatments

and protocols, they are less likely to get into trouble. If the physician diverts
from regulations and hospital rules in managing the patient, the facility is less
likely to defend.

• Keeping updated: While most physicians stay up to date with the latest
continued medical education programs/conferences/workshops/symposia,
increasing advances in healthcare make it important to know what is happening
in the world of medical news. Often medical news is reported in consumer
publications and the Internet. Often patient may discuss what is in the social
media, the ability to discuss about those news with your patients will reinforce
their confidence even though they may not be practiced by the treating doctor.

• Merit of the case: Not everyone who sues has a case. There are many instances
where a doctor is served with a lawsuit and the case either never goes to trial or
the doctor wins and is not found negligent.

• Potential litigant: A reasonable doctor should consider every patient as a

potential litigant. It is to keep a doctor in constant awareness to stick to a
prescribed standard of care and avoid any adventurous attempt. A doctor should
not ignore any allegation in any form (oral or written) and should be able to
handle allegations with clear and firmness in an intelligent and sympathetic
manner.

• Risk management: When a doctor is working for a hospital, the defendant

doctor should notify risk management department of the hospital whenever a

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 notice is served. Risk management employs lawyers who specialize in medical
malpractice. The lawyer will help the defendant doctor through the process.

• Contributory negligence: When a patient by his/her own want of care,

contributes to the damage caused in the process of treatment then they are said
to be guilty of contributory negligence. For example, if the patient refusing to
carry out the remedial treatment recommended by the doctor or indulging in
activities forbidden by the doctor further exacerbates the damage. When there
is negligence of two or more persons toward the patient resulting in a particular
damage, it is called composite negligence. They are jointly or severally held
liable for the damages.

• Informed consent: Informed consent means that the patient specifically

consents to the proposed medical procedure. Informed consent is more than just
consent. For a patient to give informed consent to a medical procedure, the
health-care provider must inform the patient about all of the risks and
complications that may reasonably occur during that procedure, however, minor
they may be. Furthermore, the treating doctor should mention about alternatives
treatments available and what happens if no treatment is done. Only after a
patient is truly informed about the potential risks of a medical procedure can a
patient give informed consent to the procedure. The treating doctor should
understand that the patient has given consent to the procedure and not to all
medical errors while on treatment. The failure to obtain informed consent can
be a form of medical negligence or may give rise to a cause of action for medical
battery.

m) Indian Penal Code: No human being is perfect and even the most renowned specialist
could make a mistake in detecting or diagnosing the true nature of a disease. It has been
held in different judgments by the National Commission and by the Honourable
Supreme Court that a charge of professional negligence against a doctor stood on a
different footing from a charge of negligence against a driver of a vehicle. The IPC
describes in following sections below regarding this difference:

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• IPC Section 52: (Good faith). Nothing is said to be done or believed in “good
faith” which is done or believed without due care and attention. Good faith
implies genuine belief on the part of the doctor that his/her act of omission or
commission would be in the best interest of the patient. The onus lies on the
defendant (doctor) to prove that not only the good intentions but also a
reasonable skill and care are exercised for the discharge of duty.

• IPC Section 80: (Accident in doing a lawful act). Nothing is an offense which
is done by accident or misfortune and without any criminal intention or
knowledge in the doing of a lawful act in a lawful manner by lawful means and
with proper care and caution. Accident implies without the prior knowledge or
intention of causing the evil effect.

• IPC Section 88: (Act not intended to cause death, done by consent in good faith
for person's benefit). Nothing which is not intended to cause death is an offense
by reason of any harm which it may cause, or be intended by the doer to cause,
or be known by the doer to be likely to cause, to any person for whose benefit
it is done in good faith, and who has given a consent, whether express or
implied, to suffer that harm, or to take the risk of that harm. The section
highlights the importance of acting on good faith and with informed consent of
the patient.

• IPC Section 89: It is similar to IPC Section 88 with the point of view of consent
in case of children below 12 years and persons with a mental disorder where a
guardian is authorized to give consent.

• IPC Section 92: (Act done in good faith for benefit of a person without
consent). Nothing is an offense by reason of any harm which it may cause to a
person for whose benefit it is done in good faith, even without that person's
consent, if the circumstances are such that it is impossible for that person to
signify consent, or if that person is incapable of giving consent and has no
guardian or other person in lawful charge of him/her from whom it is possible
to obtain consent in time for the thing to be done with benefit. In all such cases,
it is prudent to involve another senior colleague in making the decision and
recording in detail the justification or circumstances under which the decision
was taken.

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 • IPC Section 93: (Communication made in good faith) No communication made
in good faith is an offense by reason of any harm to the person to whom it is
made if it is made for the benefit of that person. However, the doctor would be
prudent enough to ensure that the communication is based on verifiable facts of
the case, in a good faith for the benefit of the person it was made and in view of
the delicacy of the matter, conveyed appropriately in the presence of
spouse/relative/guardian.

• Criminal Procedure Code Section 174: This section does not preclude the
right of aggrieved relatives of a deceased patient to prosecute the doctor for
criminal liabilities under IPC Section 304A (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 2 years, or with fine, or with both), it prevents doctors from being
arrested immediately after the unfortunate death of a patient. It also offers
doctors an opportunity for being assessed by their peers for any of the alleged
professional lapses.

n) Immunity of Government Doctors: The National Commission by its judgment and

order has held that persons who avail themselves of the facility of medical treatment in
government hospitals are not “consumers” and the said facility offered in the
government hospitals cannot be regarded as service “hired” for “consideration.” It has
been held that the payment of direct or indirect taxes by the public does not constitute
“consideration” paid for hiring the services rendered in the government hospitals. It has
also been held that contribution made by a government employee in the Central
Government Health Scheme or such other similar scheme does not make him a
“consumer” within the meaning of the act.

• Media trials: In the current situation, media is often referred as the fourth pillar
of the democracy. However, it has no right to present the facts of a case in an
unfair and prejudicial manner. A doctor cannot become a victim of malicious or
defamatory reporting. A doctor should not be silent and should rebut the
allegations. The doctor can take help of their professional association to convey
the facts and support to resist a trail by media.

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 • Prevention of harassment of Doctors: Taking the judicial notice of incidents
where the doctors are being harassed by the police in the guise of investigation
and unnecessary delay in the medical evidence by way of frequent adjournments
or by cross-examination, the court held that unnecessary harassment of the
members of the medical professional should be avoided. They should not be
called to the police station to unnecessarily interrogation or for the sake of
formalities. The trial courts should not summon medical person unless the
evidence is necessary, even if he/she is summoned, an attempt should be made
to see that the people in this profession are not made to wait and waste time
unnecessarily, the law courts have to respect for the people in the medical
profession.

The Supreme Court has warned the police officials not to arrest or harass doctors unless
the facts clearly come within the parameters laid down in Jacob Mathew's case. Even a
threat was given to the police officers that if they did not follow these orders, they
themselves have to face legal action. The Supreme Court went on to say” To prosecute a
medical professional for negligence under criminal law it must be shown that the accused
did something or failed to do something which in the given facts and circumstances no
medical professional in his ordinary senses and prudence would have done or failed to do.
The hazard taken by the accused doctor should be of such a nature that the injury which
resulted was most likely imminent.” The Supreme Court has attempted to remove
apprehension that prevents medical people from discharging their duty to a suffering
person.

The practice of medicine is capable of rendering great service to the society provided due
care, sincerity, efficiency, and skill are observed by doctors. The cordial relationship
between doctor, patient, Law and Medicine has undergone drastic changes due to the
corporatization of medical profession, resulting in commercialization of the noble
profession, much against the letter and the spirit of the Hippocratic Oath. Although rapid
advancements in medical science and technology have proved to be efficacious tools for
the doctors in the better diagnosis and treatment of the patients, they have equally become
tools for the commercial exploitation of the patients. Medical law is undergoing a massive
change. The development of law pertaining to professional misconduct and negligence is

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far from satisfactory. The legislations are not adequate and do not cover the entire field of
medical negligence. Lawsuits for medical negligence can be minimized or avoided by
taking steps to keep patients satisfied, adhering to policies and procedures, developing
patient-centered care, and knowing ways of defending against malpractice judgments.
Having comprehensive professional liability, insurance is a necessity in the present-day
litigious society.

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CONCLUSION

Health has been viewed as a major human right by the World Health Organization
(hereinafter alluded to as WHO). The part countries have, consensually, thought about that
the delight in most noteworthy and most feasible standard of health is the essential and
basic right of each person, independent of religion, race, rank, sex, doctrine, and political
conviction, social or monetary condition. Which means subsequently, health is the basic
right surprisingly and everybody must approach the necessary administrations as and when
the need emerges. Good health relates to spotless and safe drinking water, sanitation,
satisfactory lodging, training and sympathetic working conditions, nutritious nourishments
and so on. Health has in a single manner been connected to the right to protection wherein
everybody is qualified for their regard and respect. Hence, every individual is qualified to
control his/her own body and health which additionally incorporates different components.

In India, the legal executive has assumed a significant job in perceiving the right to health
as a piece of Article 21 of Chapter III which manages the crucial rights ensured under the
Constitution of India. State has been coordinated to give the most noteworthy achievable
health gauges to its residents towards the satisfaction of international principles.

There are a couple as well as adequate cases wherein the legal executive had effectively
settled on the cases relating to the right to health and guaranteeing that the state satisfies its
obligation in guaranteeing that the right so depended is properly guaranteed to its open.
Over and over, the Supreme Court just as the High Courts have used their capacity under
Article 32 and 226 individually by perusing right to health in Article 21 of the Constitution.
Despite the fact that such powers might be in the idea of legal overreach, yet such choices
are most invited. The nearness of Directive Principles of state Policy further reinforces the
need and the obligation on the state to do as such.

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 REFERENCES

• Kannan.K, “Medicine and Law” 2014.

• https://en.wikipedia.org/wiki/Right_to_health retrieved 21/1/2022
• https://www.ohchr.org/documents/publications/factsheet31.pdf retrieved
22/1/2022

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