Covid-19: The Telangana HC’s judgment on testing and treatment by private labs and hospitals

The State of Telangana has among the lowest testing rates for Covid-19 in the country. As of 14^th May, the State had conducted only 22,842 tests, which is significantly lower than other states such as Andhra Pradesh, or even Assam. To put the numbers in perspective, the neighboring State of Andhra Pradesh had, as of 14^th May, conducted 2.1 Lakh tests. As health experts have pointed out, low testing numbers mean that many asymptomatic persons who have Covid-19 may go undetected, and may unknowingly spread the virus to others. In light of these low testing numbers, a recent judgment of the Telangana HC assumes significance.

On 20^th May, in Ganta Jai Kumar v. State of Telangana, the Telangana HC struck down an order issued by the District Medical and Health Officer, Hyderabad which prevented private labs from conducting Covid-19 tests, and private hospitals from treating Covid-19 patients. This order replaced and superseded two earlier orders issued on 21^st March and 11^th April respectively. The 21^st March order stated that both public and private labs and hospitals shall test and treat Covid-19 patients. The 11^th April order directed private hospitals to stop performing other elective procedures and surgeries, so that they could enhance the availability of healthcare facilities for Covid-19 patients.

On the same day, this order was superseded and modified through another order which stated as follows:

“Adverting to the subject cited above, orders issued by this office regarding certain instructions on treating only emergency cases at notified hospitals in Hyderabad District vide reference… cited are hereby cancelled with immediate effect”

This order hence effectively prevented private labs and private hospitals from conducting tests, as well as treating Covid-19 patients. This embargo on allowing private labs to conduct Covid-19 tests can be one of the reasons for Telangana’s low rate of testing. As the Court noted, the Telangana Government had prevented private labs from conducting tests even though the Indian Council for Medical Research (ICMR) had approved 12 private labs in Telangana as eligible for conducting Covid-19 tests. The Court accordingly held that in a situation where the ICMR has deemed 12 private labs to be eligible for testing, there is no legal basis or justification for the Telangana Government to stop them.

Taking this forward, the Court held that the 11^th April order (quoted above) did not contain any reasons as to why the Government suddenly backtracked on its earlier decision, and superseded an order that was issued on the same day. As the order did not contain any reasons, it was held to be violative of the principles of natural justice. While violation of principles of natural justice was in itself sufficient to strike down this order, the Court provided another interesting constitutional perspective to this issue.

After noting that the right to health is a fundamental right under Article 21 of the Constitution, the Court held that preventing private labs and hospitals from testing and treating patients went against an individual’s right to obtain the healthcare facilities of his choice. This implies that the right to health confers a person with the freedom to choose the facility in which she wants to get treated, which includes private facilities. By forcing a person to undergo testing or treatment only in public labs or hospitals, the State was imposing an unreasonable and arbitrary restriction on the freedom to get tested or treated at a facility of one’s choice.

The Court also rejected the Telangana Government’s argument that it was administratively more convenient to restrict testing and treatment to government labs and hospitals, and stated that under the garb of containing the pandemic, unreasonable and arbitrary restrictions cannot be imposed on a person’s freedom to get tested and treated at a facility of her choice. Apart from being arbitrary and unreasonable, it was also noted that the restriction was through an executive order, and was not backed by statutory law – which in itself was sufficient to invalidate it.

In this regard, the Court rejected the Government’s contention that such an order could be issued under Section 2 of the Epidemic Diseases Act, 1897 – which is an omnibus provision that allows the State Government to frame ‘temporary regulations’ for containing the spread of an epidemic disease. The Court held that no specific power was conferred by Section 2 to place an absolute ban on testing and treatment in private facilities. The Court hence adopted an approach similar to the one adopted by the Kerala HC in its salary deferment judgment (which we discussed in an earlier post) – to hold that omnibus provisions such as Section 2 cannot be read in a manner that would allow the Government absolute discretion to bring in any and every executive action within its ambit.

The Court hence provides a new dimension to the right to health, by reading in the freedom to obtain the healthcare facilities of one’s choice – which would include private healthcare facilities. Just like other fundamental rights, this freedom shall not be absolute, and reasonable restrictions can be imposed on a person’s right to obtain the healthcare facilities of his choice. It shall be interesting to see how this freedom to obtain healthcare facilities of one’s choice is interpreted and applied in future decisions.  

Apart from the legal and constitutional reasons that we have discussed, the Court also provided a policy-based angle to this issue. It stated that for those people who may be willing to pay for the cost of testing and treatment in private facilities, there is no rationale for the State to compulsorily direct them to government facilities. It also noted that government facilities may not be in a position to handle the huge surge of cases that we may witness in the coming days, and that private healthcare facilities would reduce this burden.

While the Court makes no explicit reference to Telangana’s abysmal testing rates, it noted that limiting testing centres may increase the spread of Covid-19, as those who have the virus but are asymptomatic shall not be detected, and may spread the disease without knowledge. Permitting private labs to conduct tests may partially improve Telangana’s testing rates, and may, in the coming days, give us a better picture of the Covid-19 situation in the State.  

After an elaborate discussion, the Court concluded by stating that it would be counterproductive to allow private hospitals to treat Covid-19 patients in an unregulated manner. It held that those hospitals which had received approval from the ICMR, and which would receive approval in future should be permitted to provide treatment. It accordingly directed all private hospitals who wish to provide Covid-19 treatment to apply to the ICMR – to ensure that they adhere to all requisite healthcare standards.

While the Court’s decision to allow treatment by ICMR-approved private hospitals is a step in the right direction for Telangana, it also brings to light a larger issue – which is the need to ensure that there is sufficient regulation and oversight over the functioning of private hospitals during this pandemic. There have been multiple accounts of the manner in which private hospitals in cities such as Mumbai have been overcharging patients. For precisely this reason, the Maharashtra Government issued an executive order to take over 80% of total operational beds in private hospitals, and also placed a cap on treatment costs.

In the coming days, as Covid-19 cases are on the rise, such an approach of ensuring strict regulation of pricing and availability of beds may be the right balance that State Governments would have to strike. However, there may also be a situation where the Maharashtra Government’s executive order is challenged before the Bombay HC. In this scenario, the Bombay HC may be called upon to give its views on the Telangana HC’s exposition of the ‘right to obtain the healthcare facilities of one’s choice’. There is also a possibility of a legal challenge to similar orders that may be issued by other States. Hence, in the near future, Courts may get an opportunity to test the Telangana HC’s exposition, and devise the scope and ambit of reasonable restrictions that can be imposed on access to private healthcare.