• Alisha Sharma

RISK VS. RESPONSIBILITY

Constitutional Paradoxes mingled with Pandemic


Do nurses, public health workers, and other health workers have a duty to treat and care towards the patients during the crisis like pandemics when doing so exposes them to significant harm or even death? Whether the doctors can deny the treatment during the spread of infectious diseases or have a legal moral duty to serve the patients? What is the extent of the Duty to treat? Are we expecting healthcare workers to donate their own kidneys to the patients if they need one? Do they wave off their Right to Health and Consent after taking up this Profession?


Pragmatic questions about these Fundamental Rights and moral questions about the Risk vs. Responsibility becomes paramount. The real conundrum arises when the jurists are expected to strike off a balance between two countervailing interests equal in the eyes of law and constitution. This is evident in the shape and forms Article 21 has acquired over time due to the judicial interpretations. Right to Life envisaged in Article 21 has a very wide scope consisting of several codes of rights, two of them being Right to Health and Right to Free Consent which becomes especially important during heath emergencies. Article 21 of the Constitution of India states that “No person shall be deprived of his life or his personal liberty except according to a procedure established by law.” This right applies to every person and not just to citizens of the country. Thus, every person may be anyone by profession cannot be deprived of these rights.


RIGHT TO CONSENT


Article 21 is clear on a patient’s right to consent in seeking treatment but is silent on the doctor’s consent to provide the same especially in the times of health emergencies. Although there exists a contractual doctor-patient fiduciary relationship under Article 13 of the Indian Contract Act, the requirement of free consent must still be fulfilled.

Then the argument of Implied consent and Medical ethics Codes and Oaths comes into the picture. In general, the argument is that the risks of infectious diseases and other harms have always been a part of treating the sick, and thus, the risks are so obvious that they do not need to be explicitly stated nor explicitly accepted. For example, Dwyer (2003) writes “like firefighters and police officers, health care workers implicitly agree to accept a reasonable level of risk when they enter their profession”. But it has been clearly laid down in several judgments that free consent must be an informed one. Whereas, in a country like India where more than half of the population chooses to go for a medical profession keeping in mind a reasonable and foreseeable standard of risk during practice or the medical students opt for this under parental pressures. Medical Council of India guidelines and the oaths taken at one’s entry into a profession maybe both less specific and viewed as far more symbolic than the details spelled out in a job description. Some may view an oath-based duty preferable to contract-based consent during the times of pandemics. But these oaths also do not explicitly mention the risks involved during health emergencies like the one country is currently facing. Thus, almost 90% of our health workers never consent to these risks involved in the profession and should not be bound to abide by these unless there are required health infrastructural developments.



RIGHT TO HEALTH


In the State of Punjab v. M. S. Chawla, the apex court asserted that the right to life also included the right to health. This gives rise to a series of questions like Whether Fundamental Right to Life can be enforced against Private individuals like Doctors as they also perform a public function of providing health services, which was originally vested with the state? Whether this Right can be enforced even if it jeopardizes their own Right to Health? Are Healthcare workers not humans? The M.S Chawla case does not specify anything about the Right to Health of health workers rather only talks about the patients. Moreover, giving primacy to someone’s life over others is against the principle of equality before the law.


In the present context, the healthcare workers' job is akin to army personnel who risks their life for citizens life and security or a lifeguard who signs a contract stating that he will look out for and attempt to rescue drowning swimmers in exchange for an hourly wage. But the fact that the lifeguard can be obligated to incur greater risks does not mean he is obligated to enter the surf to try to rescue a swimmer from the mouth of a great white shark. Similarly, Doctors and Nurses are not obligated to enter a building on the verge of collapse to aid someone inside. Also, just like we won’t send army personnel to fight a battle without proper lighting equipment’s as it’ll be violative of IPC, armed forces act and affirmations by Supreme Court; we are also obliged not to send these healthcare workers to fight in the frontline without proper required personal protective equipment. Is it right to ask them to work in such an environment when several studies say that these Health workers are the most affected people during the pandemics? Why should they not back off from risking their lives?


While we deal with several unanswered questions, our lawmakers and jurists might in the future come up with better policies and amendments, efficiently drafted medical codes, specially trained health task force, and a properly developed health system to cater the needs of not just patients but both the patients and the healthcare workers.


References:

1. https://www.myadvo.in/blog/article-21-right-to-life-all-you-need-to-know/

2. https://www.tandfonline.com/doi/pdf/10.1080/15265160802317974



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