New Delhi: The Supreme Court today cautioned the government against abdicating its constitutional duty of providing treatment to HIV positive patients on grounds of
financial constraint saying it involves the right to life.
"Do we take that expense is the consideration?" a Bench headed by Chief Justice S H Kapadia said and said if it was so then the matter has to be examined in constitutional
perspective as it involved the fundamental right of right to life.
"Let us put the matter in constitutional perspective. It is about right to life. It is not open to the state to say that finance is the constraint," the Bench, also comprising Justices K S Radhakrishnan and Swatanter Kumar, said.
"We are concerned with human life. Can we not treat those (suffering from irrational treatment)? the bench said.
The Bench made the remarks when Solicitor General Gopal Subramanium was explaining the nitty-gritty of the second line of ART (Antiretro viral therapy) treatment to HIV positive patients and the high expenditure for it.
While the Bench was making the remarks, Subramanium quickly clarified that he was not on the financial aspect but on the capacity of the state to provide treatement as it has
only 10 viral load test centres needed for the second line of treatment.
"So, no question of finance?" the Bench said and the Solicitor General replied in affirmative. The Bench began the hearing saying it was "worrying" that no workable solution was in place with the government to provide second line of ART to HIV positive patients subjected to "irrational" first round of treatment in private hospitals.
"My worry in the meantime is about the death likely to occur," the CJI said when Subramanium was explaining financial difficulties faced by the government in providing medication to those persons who were victim of irrational treatment at
the hands of private hospitals.
To a pointed question by the Bench, the Solicitor General said there were 122 people in the country who has suffered irrational treatment.
He said that for the first round of treatment, the cost was around Rs 6,500 and it goes up to Rs 28,300 in the second round.
Subramanium said there was a need to do something "workable", for which there was a requirment for additional viral load centres across the country which is essential for
carrying out examination among patients migrating from first line of treatment to the second line.
When the Bench wanted to know what was the solution abroad, he said "India is far ahead than rest of the world".
The Solicitor General said pre-2004 ART treatment was not administered by the private hospitals and even at present the real concern was about the small percentage of those who got irrational treatments in private hospitals.
He said at present data was being collected as per the October 10 order of the apex court which required the hospitals to update their website in a particular format.
This submission evoked a sharp reaction from the Bench which asked "will the private hospitals do that"?
The Solicitor General was granted a week`s time to come out with a more clear-cut stand and was asked to discuss the issue with the petitioners which included various NGO`s
working in the field.
The apex court had on November 26 criticised the Centre for making a distinction in providing the second line of ART treatment to HIV positive patients by excluding those
who opted for private hospitals for the first round of treatment.
"People are going to die but you will not look at them," the Bench had said while reacting to the stand of the Centre that second line of ART treatment is made to those patients who had opted for government hospital in the first round of medication.
The Bench had said a patient cannot be denied ART treatment in government centres only on the ground that the first line of treatment was taken at a private hospital as there could be a chance that the medication was not proper.
Earlier, on October 1 also, the apex court had expressed concern that government is not making available the second line of ART treatment to all HIV positive patients and was excluding those who opted private hospitals for the first round of treatment.
"We cannot say that the patient cannot go to private hospitals," the Bench had said when the Solicitor General had submitted that private hospitals were not properly following the protocol for ART.
He had said when the patient acquires resistance to the drug due to unmonitored dosages, they turn to government-run centres for second line of treatement which is very costly.
The NGOs have challenged the National AIDS Control Organisation`s (NACO`s) directives by which the second line of treatment is made available only to certain specified categories of persons based on identified and specified criteria.
The NGOs also sought a direction that all those who are clinically evaluated to be in need of second line ART drugs should be provided such treatment free of cost without regard to geographical location, current registration with ART centres, length of time on first line ART or any other condition.
The court had during the last hearing said "having heard arguments at length, we are of the view that in the first instance, the quarterly ART reporting format for private sector needs to be immediately supplied through NACO to all private hospitals who in turn will fill up the reporting format".
The bench had also issued a notice to Medical Council of India relating to private doctors involved in ART treatment.
"The MCI, in turn, will issue appropriate directions to the private doctors, to furnish the requisite information in the ART reporting format to NACO," the Bench had said adding that the guidelines were to be issued by MCI within two weeks.