Right to Health as a basic human right and Medical Research

Author: Shraddha Pandit, New Law College, D.G. Ruparel College Campus, Senapati Bapat Marg, Matunga, Mumbai

Introduction:-

The Coronavirus outbreak sprouted towards the end of the year 2019 and spread worldwide in a few months, leading to a lockdown in many countries including India. Coronavirus disease (COVID-19) is an infectious disease caused by a newly discovered Novel coronavirus, which spreads primarily through droplets of saliva or discharge from the nose when an infected person coughs or sneezes. In addition to fever, it can also lead to severe respiratory problems like difficulty in breathing, lung failure and pneumonia.

The first case of Coronavirus in India was reported on 30 January 2020. The virus is believed to have originated in the Wuhan province of China. Earlier it was being called “The Chinese virus”. But, soon on 11th February 2020, the World Health Organization (WHO) announced a neutral name for the new coronavirus disease, which is “COVID-19”. On 11th March 2020, looking at the alarming levels of the spread and severity and the levels of inaction, WHO made the assessment that COVID-19 can be characterized as a “pandemic”.

As there is no medicine for Covid-19 as yet, the Governments all over the world decided to shut all activities down, in order to encourage “social distancing” to avoid direct contact with the persons who have the infection. As a result, “lockdown” became the catch-phrase during the first half of the year 2020, as economic activities came to a standstill. People were forced to stay at home to save themselves from getting infected and dying.

The lockdown during Covid-19 pandemic is certainly not without its adverse impact on human rights, which have been either suspended or violated, namely:-

1. Right to Freedom of Movement under Articles 19 (1) (d) of the COI[1], 13 of UDHR[2] and 12 of ICCPR[3] ;
2. Right to freedom of Occupation under Article 19 (1) (g) of COI, 23 and 25 of UDHR ;
3. Right to Standard of living and Right to Adequate Food for humans included in Article 11 of ICESCR[4] ;
4. Right to Education under Articles 21-A of the COI, 26 of UDHR and 13 of ICESCR ;
5. Right to Freedom of Religion under Articles 25 of COI, 18 of UDHR and 18 of ICCPR ;
Articles 19 (1) (b) of COI, 20 and 27 of UDHR, 21 of ICCPR, 15 of ICESCR guarantee the Right to assemble peacefully and without arms and to participate in the cultural life of the community.

However, the lockdown has proved to be not just a bane , but also a boon or “eye-opener” for the country.

Need for Medical Research and Population control:-

The Corona pandemic became an eye-opener for us, as it exposed the inability of countries worldwide to control communicable diseases. “Contagious” or “Communicable” diseases like Sexually Transmitted Diseases (STDs), Tuberculosis (TB), Severe Acute Respiratory Syndrome (SARS), Swine flu, Bird flu are contact-borne. India has been able to eradicate plague, smallpox and polio as well as control airborne diseases like TB with help of vaccination and mass awareness campaigns. Thus, it should not be a great difficulty for our country to eradicate a communicable and dangerous disease like Covid-19 or Coronavirus.

Unfortunately, the focus of doctors, dietitians and pharmaceutical companies has only been on diseases born out of a sedentary lifestyle like Diabetes or Blood Pressure. We need more youngsters to take up a career as an “epidemiologist” and “infectious disease specialist” in the coming months and years. The country also saw hasty recruitment of nurses and doctors to handle the growing cases of Corona, especially in the “Red Zones”. Instead of more and, more of young men and women must be absorbed into the medical workforce on a regular basis with good training and counselling, to be ready to face such a force majeure situation in the future.

Indian Council of Medical Research (ICMR), the apex body in India for the formulation, coordination and promotion of biomedical research, is one of the oldest and largest medical research bodies in the world. The ICMR is funded by the Government of India through the Department of Health Research, Ministry of Health and Family Welfare.

  •  The Articles 3 of UDHR, as well as 6 of ICCPR, protect “Right to life” and 12 of ICESCR emphasize upon “Right to mental and physical health”.
  • The Articles 3 of UDHR, as well as 6 of ICCPR, protect “Right to life” and 12 of ICESCR emphasize upon “Right to mental and physical health”.
  •  In India , the Right to Health is included under Article 21 of the COI, which guarantees to all “Right to life and personal liberty.” The Supreme Court has time and again observed in landmark cases like “M.C.Mehta v. Union of India”[5] , “Unnikrishnan v. State of Andhra Pradesh”[6] and “Pt. Paramanand Katara v. Union of India”[7] that the right to health implies the right to live a healthy life.

The major hurdle in exercising the Right to Health and the delivery of the healthcare system in India is the “population explosion”, that has led to a huge gap between the right to access health care and the delivery of health services. The efforts of the Government during Emergency years to curb population by use of forced sterilization failed to bring the rate of growth of population within permissible limits. As of 27 April 2020 the states of Goa, Sikkim, Manipur, Nagaland, Arunachal Pradesh, Tripura have been declared as “Covid-19 Free” with zero active cases by the Government of India. They have become “Green Zones .” The reason is the low density of population, which proved to be a blessing for these states as compared to states with a high density of population like Maharashtra and Uttar Pradesh.

Among the sciences as a whole, health stands alone to have been responded so quickly to the crisis, with doctors, nurses, pathologists, ward boys and hospital staff working day and night to cure the sick, while the police and fire brigade have been maintaining law and order and sanitizing the streets, trains, homes and offices. Thus, it is a dire need to expand on the medical research that is needed in our country. As compared to the West, India’s investment in the field of “Medical Research and Life Sciences” is inadequate. The paucity of testing kits is another challenge. India needs “import-substitution”, that is instead of buying medical testing kits and PPE[8] from abroad, we must become self-sufficient and produce these in our own country. This will also help our economy in the long term.

Experiments with the poor:-

India like other developing and underdeveloped countries, still has a considerable percentage of persons who are BPL ( Below the Poverty Line) families. Children are malnourished, whereas women are anaemic. There is a great divide in access to health even in normal times. India is truly a land of paradoxes, where some handful of people live in palatial houses, whereas the middle class in flats and poor in slums or sometimes just on the footpaths. Poor people cannot afford to buy soaps, liquid handwash or costly hand-sanitizers. How will they wash their hands for twenty seconds? How will India rescue the pavement dwellers and those who beg for a living in such times of crisis ?

For protecting the “Right to Health” of the country at large and to invent a medicine or a vaccine, the “Right to Life” of a handful few will have to be sacrificed. One of the major ethical issues and dilemmas in creating a vaccine for Coronavirus is human experimentation. Article 7 of the ICCPR states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his consent to medical or scientific experimentation.”
Clinical trials for epidemic or pandemic studies require human subjects for the experiment , which are often poor and offer a price to submit their bodies at the mercy of the experimenters. In developing countries, all notions of “informed consent” remain on paper. The illiterate many do not get a follow-up or after-care, even after suffering from side-effects.

Is it a Bio-war ?

As human society evolved, so did weapons of war. From wars on foot and on horses, to swords and guns to fighter planes and submarines, and now from there, we use drones for surveillance and war. Physical wars have a way to intellectual ones and then to technological ones. Isn’t this a bio-war? So, now the enemy would not kill us by violence or bloodshed, but by a single virus to attack our immunity. The 21st Century with all its Artificial Intelligence may allow us to view each other living poles apart in two different continents with the help of video calls. We can travel to Mars and space and back. However, one invisible enemy brings the world to a standstill and induces us to think about the very existence of the humans on Earth. The “pandemic” made it clear, how little the existing medical system in India was able to respond to the increased need for medicines as well as “PPE”. The utter scarcity for these coupled with a shortage of food supply and medical and paramedical staff lead to a chaotic condition in the country during the first few weeks of the lockdown. India was not well-prepared to face a disaster, as this one was the first of its kind, a bio-disaster. Unlike a natural calamity like floods or man-made disaster like bomb blasts, this disaster has attacked more number of humans across the globe with an invisible weapon – a virus.

Conclusion and recommendations:-

The primary focus on the world has been on allopathic medicine and curing disease, instead of preventing it. Thus, India can rely upon the ancient science of healing. It is the duty of a welfare state to provide its citizens with health care services at affordable rates. India needs to adopt broad intersections required to tackle such pandemics with the help of local medicine, which is Ayurveda, Unani and Siddha coupled with Naturopathy and Yoga. These systems must supplement the practice of allopathy. As explained by Ministry of AYUSH[9], they will help to increase the immunity of humans and thus, prevent the spread of disease. Coronavirus has rung a warning bell for us to make variations and changes in science and medical research in the coming days. Our understanding of health is our heritage. Interestingly, Article 21 of the COI also includes the Right to live in a pollution-free and healthy environment. Due to the lockdown, a major boon has been the reduction in all types of pollution and the improvement in Air Quality Index. One can see migratory birds in lakes, peacocks and parrots on rooftops and wild animals on streets in the major cities like Mumbai and Delhi. The leaves on trees are no more dust-ridden. Perhaps, the lockdown was meant to restore nature to its pristine beauty!

Research is also required for developing Artificial Intelligence in the field of Medicine. Doctors must use apps and videos to spread awareness amongst people for maintaining hygiene, to prescribe medicines, pharmacies can use apps to deliver them better. The following are a few of my suggestions, which can be used to show preparedness for such health emergencies in the future:-

  1. This pandemic thus emphasizes the need to make Medical Research a “National Priority”. Along with an increase in experimentation on humans, the subjects involved must also be resettled, treated and compensated. Thus, a Rehabilitation Scheme must be developed by the Government for such research participants.
  2.  The Medical arena needs to be upgraded with the latest technology. Doctors must use video-conferencing to spread awareness amongst people for maintaining hygiene and to control contact-borne diseases. Doctors can use online mobile apps to prescribe medicines and pharmacies can create apps to deliver them better . Apps like Arogya Setu can definitely be of help to track the cases of the affected .
  3. Offline Health awareness camps must be conducted in both villages as well as cities, especially for overcrowded areas and slums. The focus is threefold:- to control epidemics, to increase immunity and to reduce diseases due to sedentary lifestyle.
  4. Proper implementation is required of the Disaster Management Plan under the 2005 Act. Conducting mock drills and rehearsals on a regular basis.
  5. Keeping more numbers of ambulances ready. Taking the help of armed forces and NGOs where required. We need better medical infrastructure.
  6. Having a 24/7 helpline for epidemics .- functional and operative throughout the year .
  7. Developing more number of Refugee camps or Temporary Shelters ready in cases of evacuating and accommodating people, rehabilitating the affected people. These can also be used as a quarantine facility during epidemics .
  8. Children should be made aware of how to control and fight epidemics. Thus, syllabus of schools, colleges, universities must include the same.
  9. Obtaining Patents for IPR protection in the field of science (the invention of medicines or vaccine to cure the disease)
  10. Controlling population growth to lift the burden on resources including healthcare facilities.
  11. New and well-equipped institutes of virology, epidemiology, biotechnology and microbiology are needed.
  12. Public and private hospitals and clinics, as well as testing laboratories to work in co-operation with each other .

Conducting follow-up check-ups for those who were affected and cured – so no relapse. To conclude thus, Nature has shown us its might. We can only take precautions, but not control unforeseeable circumstances or “Act of God”. A healthy body is a very foundation for all human activities. No doubt the aim of AIIMS[10] is “Sariramadyam Khalu Dharma Sadhanam”[11]. We must not forget the “Hippocratic Oath”, which requires a new physician to swear, by a number of healing gods, to uphold specific ethical standards, to stay away from medical malpractices and to treat the patients with a clean conscience. India got independence from British rule by a non-violent Satyagraha. Applying the same principle, we can achieve independence from Coronavirus by staying at home and adopting non- violent ways of a simple natural life and improving our immune system. Jai Hind !


REFERENCES:

[1] CONSTITUTION OF INDIA (1950)

[2] UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

[3] INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966)

[4] INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (1966)

[5] M.C.Mehta v. Union of India” (1986) 4. SCC 750 also known as “Delhi Vehicular Pollution case.”

[6] “Unnikrishnan v. State of Andhra Pradesh” (1993) 1. SCC 645

[7] Pt. Paramanand Katara v. Union of India” (1989) 4. SCC 286

[8] Personal Protection Equipment including gloves, masks, face shield, sanitizer, soaps and the like.

[9] Abbreviation for Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy – AYUSH Ministry created by Government of India on 9th November 2014.

[10] All India Institute of Medical Sciences, New Delhi, India.

[11] Kalidasa, Kumarasambhavam, Translated from Sanskrit as “ The body is the means of fulfilment of Dharma”.


DISCLAIMER: Views and opinions as expressed in the Research Articles are solely of the author and any member of the core team of the website shall not be liable for the same.

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