On Tuesday, Rajasthan became the first state in India to introduce a Right to Health Act.
In many ways, this is a landmark legislation as it makes access to healthcare a legal entitlement of every resident of the state.
Under the law, neither government nor private hospitals nor doctors can refuse a person seeking emergency treatment.
“It is a step in the right direction,” said health activist Dr Abhay Shukla, who advised the Rajasthan government in 2019 in drafting the bill. “We don’t know why the private sector is creating a hue and cry.”
Shukla was referring to protests by several doctor groups in the state, who fear that the law will make them vulnerable.
For the Ashok Gehlot government, which runs several flagship health schemes, the passage of the bill is an important step ahead of the approaching assembly elections.
But while the private sector has put up stiff opposition to the law, health activists, too, believe it falls short of its initial promise.
What the law says
The Act allows any resident in Rajasthan to seek out-patient or in-patient consultation, emergency transport, emergency medical care and emergency diagnostics in a private or public hospital.
Emergency treatment would include care in case of accidents, animal or snake bite, complications in pregnancy or an emergency defined by the state health authority.
In an emergency, a patient seeking treatment in a private set-up would not be expected to make an advance deposit, or pre-payment for either treatment or diagnostics.
In a situation where a patient cannot pay for treatment at a private centre, the state government will reimburse the hospital for the cost incurred in stabilising and transferring the patient to another facility.
Beyond emergency care, the law also gives a person the right to avail free healthcare services from government-run health institutions, healthcare establishments and designated health centres.
A patient also has the right to choose where to procure medicines or get a test done. This will deter private hospitals from insisting on buying medicines from in-house pharmacies.
While it mandates a public hospital to treat patients, the law makes it compulsory for the private sector to provide emergency treatment in areas where government hospitals cannot provide the service.
The law also envisions the creation of district health authorities and a state health authority, which can inspect hospitals and clinics, and act as grievance redressal systems if complaints arise. These authorities will also formulate guidelines to implement the law and advise the government on treatment protocol.
For any violation under the Act, a hospital or doctor will be liable to pay a fine of Rs 10,000, which increases to Rs 25,000 for subsequent violations.
Shukla said the law will define the obligations of the government and the rights of patients. “The Act will also standardise a set of services,” he said, adding that the law will push the government to improve health services in under-served areas.
For instance, if an accident patient goes to a government hospital in a rural area, they will have to be equipped to treat and stabilise her first.
In order to do so, the government will have to depute more staff in rural health centres and improve diagnostics.
“As a result, rural areas will see an upgrade of services that currently only urban centres provide,” Shukla added.
The push for a law
While the Supreme Court has in the past observed that the right to life (Article 21) should include the right to health, in Rajasthan, the push for the law came around four years ago.
Before the 2018 assembly election, representatives of Jan Swasthya Abhiyan, a network of non-governmental organisations working in the health sector across India, approached the Congress to include the right to health in their manifesto.
Party leader Harish Chaudhary, who was then the chairman of the Congress manifesto committee, accepted the suggestion.
“The burden of out-of-pocket expenditure on health services [which are borne directly by individuals] affects everyone,” said Chhaya Pachauli, state coordinator of Jan Swasthya Abhiyan, explaining the rationale for such a law. “A poor person must not be denied treatment for lack of money,” she said.
The latest data, according to the National Health Accounts Estimate of India (2018-19), shows that of India’s “current health expenditure” of Rs 5.4 lakh crore, central, state and local body governments contribute only 32.35%. Tellingly, out-of-pocket expenditure by individuals contributes 53.23%.
While out-of-pocket expenditure has reduced over the years, it still remains higher than government spending on health.
Rajasthan fares better than the national average. The state’s total health expenditure is Rs 29,905 crore, of which the government spends 43.7%, while out-of-pocket expenditure is 44.9%.
After the Congress came to power, the Jan Swasthya Abhiyan presented a draft of the right to health bill in 2019 for the government to consider. It suggested allocating 8% of the state budget for health.
According to Dr Narendra Gupta from Jan Swasthya Abhiyan, on an average, Rajasthan allocates 5% of the annual state budget and 1.1 % of the gross state domestic product for health.
While the government did not agree to the demand, it did form a committee to work on the draft bill.
Why the law was needed
The Rajasthan government runs several health schemes that, on paper, expand access to healthcare.
For example, the Mukhyamantri Chiranjeevi Swasthya Bima Yojana provides a health insurance coverage of Rs 25 lakh per annum for a family and covers over 1,500 procedures. The Mukhyamantri Nishulk Janch Yojana provides free diagnostic tests at government centres.
But, on the ground, patients are still being turned away.
Activists said poor implementation of the Chiranjeevi scheme, complaints of rampant corruption, and frequent denial of treatment under the scheme had left the poor with limited options to seek healthcare.
During the discussion on the bill, Rajasthan Health minister Parsadi Lal was quoted as saying, “It is true that despite having a Chiranjeevi card, hospitals sometimes ask a patient for money, to deposit an advance.”
Lal added: “I get a lot of complaints, and we have even made hospitals return the money…hence we are bringing this Bill.”
The crucial difference, according to Gupta from Jan Swasthya Abhiyan, is this: under the new law, citizens will be entitled to demand treatment even in areas where the scheme is implemented poorly.
“If a patient is denied a test claiming the machine is not working or a technician is not present, or if he is denied treatment on the pretext that a bed or a doctor is not available, he can approach the grievance redressal system and the violator will be penalised,” Gupta said.
‘A diluted law’
The Act was first introduced in the state assembly in September 2022. It was then referred to a select committee for changes.
Both Gupta and Pachauli, however, argue that the modified version of the bill is diluted.
Gupta, who was part of the committee in the early stages of drafting the bill, said the initial draft did not cover the private sector but focussed on expanding the capacity of the public sector.
“The government wanted to reduce the scope of their commitment and bring in the private sector,” Gupta said.
Health activists were hesitant. “We did not want involvement from the private sector,” Gupta said. “We feared they would admit a greater number of patients, or show fake patient records, to seek reimbursement from the government.”
Why doctors are protesting
Several associations of doctors have come together to demand a repeal of the Act.
Private doctors have stopped routine and emergency services, including diagnostics, outpatient and inpatient treatment to oppose the Act. They have also called for a boycott of government health schemes.
On March 21, police had to use force to disperse protesting crowds of medical practitioners.
“This Act is unconstitutional and unacceptable,” said Dr Vijay Kapoor, secretary of Private Hospitals and Nursing Homes Society, who was injured during the protest and later hospitalised.
He told Scroll that doctors’ groups plan to seek legal means to oppose the Act.
“The government is shifting its own responsibility to private doctors – and it is doing so at gunpoint,” Kapoor said.
A senior bureaucrat who formerly worked with the health department in Maharashtra said Rajasthan frequently witnesses cases of assault against doctors. “The Act may provoke a patient’s family further in cases where treatment is denied,” the bureaucrat said.
‘Good faith’
Among the more disputed provisions of the law is that it discourages hospitals and doctors from contesting the decisions of the health authority.
The Act states that no hospital or doctor can approach any court against a decision of the health authority that is “taken in good faith”.
The law, however, does not define “good faith”. Private hospitals have objected to this phrase, arguing it makes them vulnerable to the whims of the district or state health government authority.
“The Act practically allows any patient to demand treatment, complain against us and the authority can then take arbitrary decisions,” said Dr Ashok Sharma, a protesting doctor. “On top of that, we cannot approach the court against the authority’s decision.”
“This is injustice to doctors,” said Dr Neelam Khandelwal, a nutritionist who owns a clinic in Kota. “The government wants to win elections on the basis of this Act.”
Doctors and hospitals are also worried about the lack of clarity in how they would be reimbursed by the government for treating patients unable to afford hospital care.
The Rajasthan government will have to make a provision in its budget to establish the health authorities at the state and district levels and for the reimbursement of bills to private hospitals – but no budget has been allocated for the law for the 2023-24 financial year.
Doctors believe the mistrust between patients and doctors will widen if the Act is not properly implemented.
The main Opposition, the Bharatiya Janata Party, has demanded that only multi-specialty hospitals with 50 or more beds must be brought under the Act. However, this will leave out a major chunk of smaller nursing homes, hospitals and clinics – typically the first port of call for many patients.
The rules of the Act, which are yet to be notified, are expected to provide clarity on whether the law is applicable to all private hospitals or only those with a certain number of beds.
It will also define the exact role of the health authorities and their powers, and the standardisation in services expected.
“The Act is just the first step,” said Jan Swastha Abhiyan’s Pachauli. “Its implementation will be harder.”
This reporting was supported by a grant from the Thakur Family Foundation. Thakur Family Foundation has not exercised any editorial control over the contents of this article.
