Medical ethics and

Bioethics
 Equality, justice and equity
• Equality
• Sameness in some respect such as human dignity
• Justice
• Different types, but generally fairness
• Equity
• Application of fairness, which may require unequal treatment
 The different types of justice
• Distributive- ensures that each person receives a fair share of public
resources
• Procedural- ensuring a fair process for making decisions and settling
disputes
• Retributive- ensures punishment of wrongdoers
• Restorative- attempts to repair harm done in past
• Social- combination of above, as applied to society in which individuals and
groups receive fair treatment and a just share of benefits of society
 The different concepts of distributive
justice (the most important types for
healthcare)
• Authoritarian- what the king or other higher authority decrees is just
• Libertarian- what an individual decides to do with his or her own property
is just
• Utilitarian- what most contributes to the greatest good of the greatest
number is just
• Egalitarian- justice is achieved when everybody has equitable access to
societal resources that they need
• Restorative- justice requires favouring previously disadvantaged individuals
or groups
How these different concepts of
justice are reflected in the
different healthcare systems
found around the world
The right to health care
 Right to Equality & Right to healthcare
• The right to equality guaranteed under Article 15 upholds non-
discrimination on the basis religion, race, caste, gender, place of birth, etc.

• However, the dismal investment in public health for decades has made
healthcare a privilege available to a few.

• The constitutional right to health is critical to breaking discriminatory

structures that will otherwise continue to perpetuate inequality in all
spheres of life, including education, opportunity, wealth, and social mobility.
 Right to healthcare
• The COVID pandemic has exposed the deep vulnerabilities of India’s healthcare
system. Much of this is blamed on India’s low expenditure on healthcare, only 1.29%
of the GDP (in 2019-20), lower than most other countries.
• Another critical reason for the weak public health in India is the absence of a
statutory framework that guarantees a fundamental right to health.
• There is a need to make the right to health a fundamental right – and implement it
within the framework of legal devices and human rights principles of solidarity,
proportionality, and transparency which will help India address the challenges posed
by pandemic situation like COVID. Implementing the right to health within India’s
framework of co-operative federalism will build capacities where they are most
needed – at the grassroots.
 Constitution of India & Right to healthcare
• The Constitution of India does not expressly guarantee a fundamental right to health.
However, The Directive Principles of State Policy in Part IV of the India Constitution
provide a basis for the right to health. Article 39 (E) directs the State to secure health
of workers, Article 42 directs the State to just and humane conditions of work and
maternity relief, Article 47 casts a duty on the State to raise the nutrition levels and
standard of living of people and to improve public health.
• The Supreme Court of India in various landmark cases interpreted the right to health
under Article 21 which guarantees the right to life and reaffirmed that the right to
health is fundamental to the right to life and should be put on record that the
government had a constitutional obligation to provide health services.
 Constitution of India & Right to healthcare
• In September 2019, a High-Level Group on the health sector constituted under the
15th Finance Commission had recommended that the right to health be declared a
fundamental right. It also put forward a recommendation to shift the subject of
health from the State List to the Concurrent List. The recommendation to declare the
right to health a fundamental right, if implemented, will strengthen people’s access.
• At present, the subject of “public health and sanitation; hospitals and dispensaries”
falls under the State List of the 7th Schedule of the Constitution of India – which
means that state governments enjoy constitutional directives to adopt, enact and
enforce public health regulations.
• A 2019 NITI Aayog report highlighted that states in India had unequal public health
systems. This imbalance was primarily due to restricted technical expertise and fiscal
constraints.
 Constitution of India & Right to healthcare
• On a crucial subject like health, there must be coordination between the centre and
states without impeding cooperative federalism – an essential element of the Indian
Constitution.
• The joint response to COVID19 has demonstrated the need for strong capacities at
the district and local levels to contain the spread of the pandemic.
• Lessons from the response also show that while smooth coordination between states
and the centre is imperative, health needs to continue to be in the State List.
• Decentralisation of power and funds to states for boosting their respective public
health systems is therefore imperative.
 Constitution of India & Right to healthcare
• Through the Directive Principles of State Policy, the Constitution has made a forceful
appeal to the State to provide a decent standard of living.
• Several legal precedents have dictated that the state is responsible for citizens’
healthcare. India’s commitment to international legal treaties and conventions also
binds it, as a state party, to enhance and provide adequate public services and a
minimum standard of universal health care.
• Existing constitutional guarantees, legal precedents and global commitments form a
solid basis for a fundamental right to health in India.
• A legislatively guaranteed right will make access to health legally binding and ensure
accountability.
 Constitution of India & Right to healthcare
• A constitutional amendment on the lines of the 93rd Amendment to the Constitution
which provided a constitutional sanction to the right to education, should be adopted
for providing adequate healthcare in India.
• In addition to statutory recognition, the right to health in India will need to be
implemented within the framework of principles of solidarity, proportionality, and
transparency that are central to international human rights and health law.
• The principle of solidarity is closely linked to the fundamentals of justice and equity.
In the context of the right to health, solidarity can guarantee equal access to public
health systems to all.
• The assertion of solidarity requires that the government and institutions treat people
and protect their rights equally without any discrimination based on sex, caste, class,
religion and language.
 Constitution of India & Right to healthcare
• In the legal context, the doctrine of proportionality is a tool to determine a correct
balance between the restrictions imposed by the state as a corrective measure and
the severity of the prohibited acts.
• The doctrine of proportionality help in determining the conditions for a limitation of
constitutionally-protected rights.
• In the present time, the Government of India along the other countries has adopted
far-reaching measures such as lockdown to control movement, mandatory
institutional quarantine and criminalisation of those who do not comply with the
guidelines. These actions have resulted in unprecedented restrictions on civil liberties
and human rights.
• Tough and hard decisions don’t necessarily lead to success; it is the systematic
approach and respect for human rights along with the interest of the community at
larger that is the way forward.
 Constitution of India & Right to healthcare
• The principle of transparency is critical for good governance and to ensure people’s
trust in public administration. To effectively allow the scrutiny of decisions made by
the government and of its maintained institutions, information should be available,
accessible and disseminated among the population.
• The principle of transparency goes hand-in-hand with that of accountability and
reliability. In the context of the right to health and healthcare, the practice of
transparency will help in keeping the inflation in drugs and medical services under
control, maintain the adequate functioning of public institutions and hold on to the
trust of the people.
• Recent efforts to use big data analytics to track patients and trace contacts through
applications like Aarogya Setu, need to align with the principle of personal data
protection, and any use or dissemination should be with the prior consent of the
citizens in a transparent manner to gain people’s trust.
 Constitution of India & Right to healthcare
LAST WORD
• It is time India declared the right to health a fundamental right. Strong
health laws will help build societal resilience to future pandemics and public
health emergencies.
• Emergency responses can’t come at the cost of neglect of human rights
obligations. It is critical then that the right to health be implemented, using
the principles of transparency, proportionality and solidarity.
• The COVID19 experience has also demonstrated the importance of a
decentralized/polycentric response – India’s co-operative federalism,
therefore, must be strengthened.
 ROLE OF HEALTHCARE
PROFESSIONALS
• Healthcare Professional can act in different capacities and at different levels to shape and
influence the development, disbursal and delivery of healthcare facilities.
• Roles of health care professionals in establishing health care priorities and allocating scarce
health care resources
• As government policy makers and officials health care professionals can plan an efficient
healthcare system catering to all the people of India from grassroot level services to multi-
speciality hospitals
• As hospital authorities health care professionals can bring about a system of healthcare
delivery, which can reach the poorest of the poor.
• As direct health care providers health care professionals can act at community level as
family physicians taking care of people’s healthcare needs, health educationist spreading
awareness about healthy practices and about encourage people to participate in various
government health programmes and also act as counsellors to support and help those who
need it.
Equality In providing health services
Case study
 Mr. S is a 41 years old unemployed male. He is diabetic and suffers from
ischaemic heart disease and cerebro-vascular disease, leading to his
stroke in 1996.
• In 1996, his kidneys failed as well. His condition is irreversible, and he is
now in the final stages of chronic renal failure.
• His life could be prolonged by regular dialysis treatment. He has sought
such treatment from the renal unit of the public hospital;
• However they can only provide dialysis treatment to a limited number of
patients.
• Because of the shortage of resources, the hospital follows a set policy
regarding the use of its dialysis resources.
• Only patients suffering from acute renal failure that can be treated and
remedied by renal dialysis are given automatic access to renal dialysis at the
hospital.
• Those patients who, like Mr. S, suffer from irreversible chronic renal failure
are not automatically admitted to the renal dialysis program.
• Access to dialysis treatments for patients like Mr. S is given only to those
eligible for a kidney transplant.
• Mr. S suffers from ischaemic heart disease and cerebro-vascular disease,
and is therefore not eligible for a kidney transplant.
• Therefore, the hospital has been unable to provide Mr. S with the treatment
he has requested.
• Mr. S has managed to receive dialysis treatment from private
hospitals and doctors, but his finances have been depleted and he
claims he is no longer able to afford such treatments.
 Question

Should the state provide the desired treatment

to a person such as Mr. S?
 yes
• It is the state’s obligation to provide appropriate medical treatment
for those who cannot afford the treatment on their own. By not
providing the treatment, the state discriminates against those who
cannot pay
 No
• Because the state has limited resources, it cannot provide all desired
medical treatments to everyone. A dialysis program is in effect, with
specified criteria determining who is eligible for the treatment. It is
unfortunate that Mr. S is not eligible for this program.
 Court decision
• This case came before the Constitutional Court of the country. Mr. S
based his claim on a Section of the Constitution, which states that ‘No
one may be refused emergency medical treatment’ and another
Section, which stipulates ‘Everyone has the right to life.’ The court
dismissed Mr. S’s claims.
• One can only have sympathy for Mr. S and his family, who face the cruel
dilemma of having to impoverish themselves in order to secure the
treatment that Mr. S needs in order to prolong his life. The hard and
unpalatable fact is that if Mr. S was a wealthy man, he would be able to
procure such treatment from private sources. But he is not wealthy, and
therefore must appeal to the state to provide him with the treatment.
The state’s resources, however, are limited, and Mr. S does not meet the
eligibility criteria for admission to the renal dialysis program.
Unfortunately, this is true not only for Mr. S, but also for many others
who need access to renal dialysis units or to other healthcare services.
 General Group Discussion
• Is there a right to health care in your country? What does it mean in
practice?
• Does your country have a state funded health system? To what
extent?
• How are resources distributed? Is there disparity between regions,
socioeconomic status or racial groups?
• Is there a “safety-net” for those who cannot afford health care?
• Are there any groups of people who would be denied treatment? On
what grounds?