Comments=As I was ruminating over the 50-page draft of the Health Bill, I could recall a very large number of factors, which were left unattended in the Draft. I will limit myself only to some major ones. It can turn out to be a substantial article, if we attempt even to confine ourselves only to a few. It is so extensive because, as I have written elsewhere, after Independence the freedom struggle had changed to a class struggle. Gunnar Myrdal had stressed this aspect in his Asian Drama. An account of health actions has been a series of betrayal of the masses by the ruling classes. Whatever the masses have been able to acquire has been through active struggle. NRHM is the latest of this betrayal. Our response to the Draft Bill will be an effort to raise the voice of the voiceless and expose the series of the betrayals. Here are some more of the flaws in the Bill, apart from what I had written earlier and what Mira Shiva and others are going to present, particularly the drugs issues:

1. Why this bill?

a. The NRHM had been a disaster, both in terms of its design as given in the Mission Document as well as in implementing the limited range set out in their Mission.

b. We had miserably failed in Polio eradication, in AIDS programme, in Revised National Tuberculosis Control Programme, in the Universal Immunization Programme -- to name the prominent few.

2. We designed the National Health Policy of 2002, saying that the NHP of 1982 as too ambitious. Even in the 2002 Policy we had confessed that the vertical programmes were "not cost effective"; "non-sustainable"; and "distort othere health programmes". Yet we have been going on with these. Why?

3. We had designed the 1982 Policy, saying that the path we had been following in the previous 35 years were "curative", "Urban oriented" and "privileged class oriented"

4. We had the ambitious Mudaliar Committee of 1963.

5. Then we had the Bhore Committee of 1946 and Sokhey Committee of 1938

6. Besides we has each of the Five Year Plans, political menifestoes, several other solemn promises to the people. What happened to them? Then why this bill?

7. The basic reason is political. Politicians have to go on cheating the people since 1947. The bill is the latest in the series.

8. IAS bureaucrats serve the interests of the politicians very well because they know so little and their accountability is virtually non-existent. This also suits the foreign agencies of various kinds in imposing their agenda on the people of the country.

9. Specialists in public health and health administration must be "eliminated" to make way for the racketeers.

10. The clinician dominated Central Health Services is also convenient to the rulers because they know so little about people's health.

11. India is among the lowest five countries of the world in terms of the investment in public health.

12. It is among the lowest five in in the world in terms of maternal mortality and morbidity, child malnutrition and maternal anaemia

13. The Directive Principles for the State Policies enjoins that `the state shall protect and promote health and nutrition of the people'.

14. The Draft Bill ignores the fact that health is a state subject. Most of health actions take place at the state level. Following the character of the ruling class, over the past 62 years it has abjectly surrendered to the international mafia and allowed them to impose their will over the states in the form of `centrally sponsored' schemes. The Family Planning Programme is an outstanding example of such imposition.

15. Both the Centre and the states have grievously suffered due to virtual decimation of the once towering key public health institutions like the All India Insititue of Hygiene and Public Health, the National Institute of Health and Family Welfare, the National Institute of Communicable Diseases, the Planning Commission and ICMR.

16. One consequence of such gross neglect and lack of public health competence has been an almost unbridled growth of communicable diseases like Japanese Encephalitis, Kala-Azar, Dengue Heamorrhagic Fever and Malaria.

17. The states too are dominated by bureaucrats fom the IAS cadre. They are mortally afraid of retributions from their controllers from the Centre should they ever dare to call into question the dictates in centrally sponsored schemes.

18. The states have lost the cadre structure for physicians and they have given up our institutions for education and training for public health physicians and the support staff.

19. National Health Information and Evaluation System, vital element in health administration, is virtually nonexistent in the country. We are still to get of reliable birth and death record for the country.

20. The Medical Council of India has to acquire the stature (and then surpass that too!) that it had under the Presidentship of B C Roy during the freedom struggle.

I hope this will suffice. I will be glad to elaborate on the 20 points, if required.

With regards,

Sincerely yours,
D Banerji
Debabar Banerji
Professor Emeritus, JNU
B 43 Panchsheel Enclave
New Delhi 110017
PLEASE NOTE MY NEW EMAIL ID: banerjinhpp@gmail.com
Please note new email id: nhpp@airtelmail.in

Name=D Banerji
E-mail=banerjinhpp@gmail.com

Comments=The said bill keeps on referring to 'health' without ever discussing which definition of 'health' it wishes to follow. For, there are more than one definition of 'health' in the literature (E.g. the medical definition as 'absence of disease', the holistic WHO definition, etc). Not all of these definitions are mutually compatible. Not all of them widely accepted. Critics caution us even about the WHO definition. So, a discussion is necessary to know exactly what kind of health this document is trying to ensure for Indian citizens. Then, the further task remains to find out if that definition is truly suitable for a populous, extremely diverse, developing country such as India. If not, merely putting up a document with fictionary health laws and rights on the web means NOTHING.

Name=Chhanda Chakraborti, Professor
E-mail=chhanda@hss.iitkgp.ernet.in

Comments=The bill meant only for people who can read english it is also meant only for people who have access to a computer which has an internet connection!The Health Ministry seems to think that the IT(information technology revolution has already taken place in India.Bulk of the rural and urban poor will never see this bill and they are the ones who need health care the most.A few rich people will dwell on it have it passed in the parliament

Name=Sanjai Sharma
E-mail=sharma.sanjai@rediffmail.com

Comments=Dear Abhay,
Thanks for generating a constructuve debate..The title of your paper is quite apt for this situation NationalHealth Bill clear the bathwater, keep the babyHowever, I dont see any baby - certainly not a healthy one. A Righthas a meaning when the mechanism to ensure ones right is in place. Wehave mechanisms without rights (except directive principles) - egminimum wages. Or PDS in absence of right to food. I have right ofmovement but in absence of transportation these rights lose themeaning.Other important issue is how this bill will have implications onprivate health sector? A universality of health care is inclusive ofprivate sector. That is if I am ill I should be entitled to walk intothe nearest health care facilities of my choice and treatment be givenwithout any payment! Does this bill indicate anything of that sort?CGHS has extended most of its health care to all with certain limits.Central Govt employees can get reimbursed for treatment from definedprivate hospital. What would be the implication of this bill to nongovernment sector?
Dhruv
Name=Dhruv Mankad
E-mail=drhvmankad@gmail.com

Comments=Dear Abhay,

1. Thank you for your detailed defense of the Bill which made me look at the provisions even more closely. I must say that the Bill is very well drafted and I don’t share your opinion that it contains “ambiguity” which needs to be “eliminated” or any provisions which require to be made “more explicit”. Nor does it require us to “definitely clarify and sharpen key provisions”. That would be an insult to those who have drafted the Bill because even a glance at the Bill would show how much meticulous work has gone into the drafting.

2. Your response is essentially a defense of the Bill because though you say certain changes ought to be made, you elaborately argue that free health care is inbuilt in the provisions of the Bill. I will demonstrate why this is not so a little later and argue that instead of obfuscating the issue in the manner done it would be better for all of us to take a hard look at the political and other processes by which we make drafts of statutes and offer them up to Government.

3. Instead of tinkering with what is essentially a very sophisticated and elaborate reversal of all that we have stood for in terms of health rights for the poor it may be better that we, for the moment, take a step back and ask ourselves what is it that we seek to achieve through a National Health Bill. What is the problem that we seek to cure. What are the impediments that we seek to overcome. What are the policies and practices that we seek to reverse.

4. The National Health Bill has not just been drafted out of the blue. The coincidences are too striking to be ignored. While the UPA Government was in power and particularly after the recent elections, groups within civil society working closely with certain people in government began formulating statutes on the Right to Food, the Right to Education and the Right to Health Care. The initiatives had a veneer of consultation. In education some of our friends worked closely with Kapil Sibal in pushing the atrocious Right to Education Act and caused considerable confusion among NGOs. On food, certain drafts were given to Government even before the Right to Food Campaign could get its act together.

5. A comparison of the Right to Education Act with the National Health Bill, 2009 brings out striking similarities in approach even though the topics are so different. Both see the private sector as playing not only an important role but also an expanded role. Both see the private sector as being capable and desirous of providing services to the poor. Both envisage larger state funds going towards the private sector. Both implicitly accept the decline of government facilities as inevitable and make little departure from the status quo. Apart from the artful introduction of clauses of a general nature, the specific clauses are characteristically devoid of any specific rights. These are the general clauses, Abhay, that you focus on in your defense of the Bill.

6. In the debate on the Right to Food Bill there were some in our movement who were inclined to reduce the Right to Food to certain schemes. The broader view was that we cannot expect hunger to be eliminated through schemes while Government acquires land displacing people, destroys the forests, privatizes water, patents seeds, pilfers biodiversity and steals traditional knowledge. In brief we understand that it is impossible to eliminate hunger if we accept globalization and privatization and all that it brings with it.

7. It seems to me, untutored as I am in the intricacies of the Right to Health Care, that these fundamental issues arise within the health movement as well. I suppose there are many who say that the private health care system is here to stay so we may as well live with it and the most we can hope is that government will regulate it. This is how some of my movement friends argued while supporting the Government’s Education Bill. It seems to me that the Draft National Health Bill, 2009 unambiguously and clearly moves on this track.

8. Now we have to decide, Abhay, as to exactly where we stand. Government is going to come out with a National Health Bill whether we like it or not and that Bill will go down the path of increased privatization. The sustained decline that we have seen in the government health system will continue in the years to come. Just as government schools are closing throughout the country and poor children are expected to be shifted to private schools where their education is expected to be subsidized, so too will the poor be told to go to private facilities and they supposedly will be subsidized when they are treated there. I have no doubt that neither in education or in health care will the private players ever look after the poor even after they take substantial government funds. But that is another story. The question is do we see ourselves as advisors to government and draft a Bill along the lines the government is thinking sprinkling in a few progressive idea here and there or see the drafting process as part of a social movement to raise fundamental issues about the direction in which things are going and then draft a statute on the basis of wide public consultations so as to reflect the mood of the people. If you feel that we ought to go by the second route then you may not want to tinker with provisions by a knee jerk reaction, rather you may want to have fundamental discussions as to what is really required by the working people in India and then proceed in a completely different way. The statute that you may evolve by the second route may be just 10 pages or even less and concentrate on the core issues. Such an abridged version may not have the frills of the present draft but it would at least address the central issues that concern us all. After that it is upto government to make a law and to take or reject from our draft what they will but at least government cannot say that they drafted a poor statute based on consensus among civil society groups.

9. This is a Bill of cooperation with Government. It basically moves on the premise that government is well intentioned and doing the best that it can. Accordingly some activists will argue that it is idealistic and unrealistic to expect any change in the globalization regime and we must make the best of it. I read your comments as broadly indicating that you are taking this line.

10. The alternative way is to begin not by drafting a Bill, because the drafting of a statute is not the putting together of many different ideas serially ordered, but by holding a political discussion nationwide on the direction we want to go. Absent such a discussion any debate on the Bill will always result in a tweaking here and there in order to satisfy every point of view, just as you have suggested changes to accommodate my critique.

11. The political debate that took place in full public view on the 11th of July 2009 when the Right to Food Campaign called for a National Consultation on the Bill is to my mind a remarkable event and forced us out of our slumber and it was an extraordinary learning process despite the occasional angry exchanges. Through that turmoil we have come out clearer and more focused on the ground realities.

12. The draft National Health Bill, 2009 has no reflection of the agony and suffering of the people of India and their anger and resentment against a system that has basically decided not to treat the poor and to focus on those who can pay. Some of the cases done by public spirited citizens in the Delhi High Court has shown to what depths the government hospitals have fallen in the capital city. A tribal activist from Jharkhand who was shot in the eye by the police and had a bullet lodged in his brain was told to sleep on the pavements outside AIIMS for days because he could not be admitted. Should a people’s Bill not reflect the bitterness of the poor or ought it to be sanitized and antiseptic with all rights couched in general language and with no specific emphasis to the principal concerns of the poor.

13. You would agree dear Abhay that the principal concerns include:

i) 70% of the population that is poor and unable to pay for health services should be guaranteed in explicit terms and not by way of a side wind or forced, artificial explanations, free and comprehensive health care services which would include all the medicines necessary, proper hospitalization when necessary, adequate treatment, food during the period of hospitalization and so on and so on.

ii) Such a right is incapable of being exercised unless the state takes substantial responsibility for providing and running hospitals and other health care institutions. Thus the principal health care provider for the poor must invariably be the state.iii) Recognition of the role of the private health care providers and their regulation by the state is an additional concern but it cannot be believed that private players will show any concern for the poor. Nor is regulation by the state today what it was after independence during the period of nation building. State officials are hardly interested in regulating private enterprises in any real sense of the term. Any frame work which downgrades the role of the state to a regulator of private enterprises rather than the principal provider of health care services is fundamentally antithetical to the Right to Life - Article 21.

14. Now you must ask yourself, Abhay, provided you agree with the 3 points above, as to where in the National Health Bill, 2009 you find the above concerns articulated.

I

Abhay’s First Point: Bill covers a large section

15. I now deal with your first point that a friendly reading of the Bill would indicate that it is not meant to cover only the poorest of the poor but a much larger section. You have outlined in detail the obligations of governments as set out in Chapter II and I suppose you realize that it begins as follows:

Government of India and the State Governments have the following general obligations… (then you have taken pains to set out sub para (a), (b) and (c) and then is found the following) notwithstanding the above the Governments have the immediate duty to prioritize the most vulnerable and marginalized persons and groups…and ensuring them at least the minimum conditions of health care.

16. Now you say “I would think that the basic principle of free and universal access to health care services is laid down quite clearly here!” This comment alone would prompt me to say that you are basically defending a very dangerous formulation. What this formulation does is, first of all, to say that there are some general obligations to provide health care for all. General obligations are exactly that – general obligations. Their enforcement is uncertain because it depends on financial capacity. Such provisions in statutes are generally difficult to specifically enforce save in situations of ambiguity in interpretation in which case a court may use a general observation to swing in favour of that observation. These general observations are cut down by specific provisos which in the present case as abovementioned indicates that the immediate duty is only towards the vulnerable. For the rest depending on the financial situation of the state at some indeterminate future, the rights will kick in – but not now. You will also note that in the general obligations (a), (b) and (c) which you have highlighted the word ‘free’ does not appear. So even in the general obligations on which you so much rely there is no categorical assurance of free services.

17. This attempt to squeeze out of a draft by desperately looking for a word here or a phrase there for something that should have been at the heart of the legislation and proudly stand out, is also clear from your reference to section 2(qq) which defines vulnerable and marginalized sections. I have already dealt with this extensively in my first note and I really don’t want to repeat. Vulnerable and marginalized are well established terms in government parlance and the list is easily available. Reference to women is not meant to cover all women but women headed households or women over 65 and destitute. It is well settled that the vulnerable and marginalized sections occupies the bottom 1/3 of the BPL list and numerically comes to about 10% of the entire population. Surely such a qualification in the draft Bill was not introduced accidentally unaware of the common meaning, both in the government as well as the voluntary sector, of the term! Surely you are aware that the World Bank repeatedly insists that free services ought to be restricted to the vulnerable and marginalized and the rest should pay “user fees” or as the draft says “affordable” amounts.

II Abhay’s Second Point: Bill calls for the strengthening the public sector

18. I now deal with your second point that the Bill does call for the strengthening of the public sector. You have culled out the following part of the draft Bill in support of your argument that the draft Bill categorically calls for the strengthening and expansion of the public sector health care system:

Chapter II section 4. Core obligations regarding underlying determinants of health: Within the framework of general obligations mentioned above, the core obligations of Governments towards right to health and well-being shall include the minimum essential levels of the following obligations towards the underlying determinants of health: (a) Ensure equitable distribution of and access to essential health facilities, goods, drugs, services and conditions to all, and especially for vulnerable or marginalized groups;

(f) To devise, adopt, implement, and periodically review, health policies, strategies and plans of action, on the basis of epidemiological, sociological and environmental evidence, addressing the health concerns of the whole population, which shall include methods such as right to health indicators and benchmarks, by which progress can be closely monitored, and evaluate them on the basis of outputs. …

Chapter II Section 5. Obligations to provide access to quality health care services: The Governments shall also carry out the following as their obligations of comparable priority towards right to health and well being of all:a) Ensure all the rights related to health care as laid down under this Act

These rights are laid out in the next chapter -

CHAPTER III
Section 9. Right to access, use and enjoy: Every person has the right to access, use and enjoy all the facilities, goods, services, programmes and conditions necessary for ensuring the right to health, including but not limited to at least the following:
(a) Right to food;
(b) Right to water;
(c) Right to sanitation;
(d) Right to housing;
(e) Right to appropriate health care, and health care related functional equipment and other infrastructure, trained medical and professional personnel, and essential drugs;Appropriate health-related IEC, including on sexual and reproductive health, to be able to make more informed health related choices;Section 14. Users’ Rights to health care (Users’ Rights): Following are the rights of users of health care:
(2) Right to seek: Every person has the right to approach and seek health care facilities, goods, services, programmes and conditions, equitably, without discrimination;
(3) Right to receive: Every user has the right to receive, use and enjoy, and right not to be denied, health care appropriate to that person’s health needs

19. Now where, dear Abhay, in all this, is there a single reference to the government system? Isn’t all this so cleverly crafted so as to be compatible with a privatized system with the government acting as a lapdog (sorry watchdog)? How do these sections help you advance the argument that the Bill requires the government to concentrate on reinforcing the public health care system?

20. Your residual argument takes refuge in Schedule I of the Act where there is a two line reference which is as under:

Schedule I
Illustrations of the State’s obligations to respect, protect, fulfill health rights(to be read with Section 6 of the Act)

Given these Illustrations of obligation to fulfill:

c) Laying down equitable coverage norms and ensuring provision of a sufficientnumber of functional hospitals, clinics and other health-related facilities;
d) Ensuring provision of guaranteed health services to all persons requiring theseservices, by public health facilities at various levels including sub-centre, PHC,CHC, Sub-divisional hospital and District hospitals in rural areas and similarlydefined levels in urban areas; Laying down standards (like IPHS) and normstowards quality assurance and improvement; protocols for treatment and other medical interventions;

21. Now don’t you find, Abhay, that in a Bill of 56 pages there is not a single reference in the body of the statute to the duty of the government to strengthen and expand the public sector as the principal provider for the poor? In the 38 sections of the statute there is likewise no reference at all. Schedule I has reference to section 6 which are the obligations of government. Here two 11 areas are mentioned as the obligations of the Central Government and 15 areas as the obligations of the State Governments and here once again, there is no reference to the strengthening of the government system. Only in a Schedule and that too by way of an illustration does one find a collateral reference to the public health system.

22. Look at section 6 closely and you will understand how craftily the Bill has been drafted. The obligations of government is not to run a health care system at all but to take care of communicable diseases, emergencies, health care documentation, population stabilization, disease outbreaks, etc., etc. There is a reference in section 6(2) (c) to health establishments but again there is no specific and separate reference to the public sector health establishments. The public sector and the private sector establishments are taken together throughout the Bill.

III
Abhay’s third Point: Free Services are covered

23. In response to my criticism that free services are nowhere defined, Abhay argues that the Bill “is quite a comprehensive set of entitlements to health care. I have argued that free services are nowhere defined. I suppose free services include: (i) free medicines, (ii) free tests (iii) free admissions to hospital (iv) free bed (v) free treatment (vi) free food and so on. I pointed that this crucial feature figured nowhere in the Bill. I would have thought that in the definition clause it would have been included because it is such an important point. But it is missing from the Bill. Now Abhay says its okay because:

Specific details…are likely to come under the Rules, not in the Act itself

24. Now this is completely unacceptable. What Abhay is saying is that Parliament will not deal with what the core obligations are at all and will leave that decision to bureaucrats in the government. Thus a 56 page National Health Bill need not have a paragraph defining what is meant by free services!

25. Moreover, all the general sections that you rely on (except section 3(c) which in any case has been cut down by the proviso to restrict the benefit as of today to vulnerable sections only) do not use the term ‘free’ but use the term ‘access’. Access is defined in section 9 (b) as under:

(b) accessible to everyone, such that ‘accessibility’ shall mean and entail:

(iii) economic access or affordability

26. This is precisely the logic of the user fee system.

Warm regards
Colin

Name=Colin Gonsalves
E-mail=colin.gonsalves@hrln.org

Comments=National Health Bill – clear the bathwater, keep the baby- Abhay ShuklaThe National Health bill has been on the Health Ministry website since several months, without much public comment. Colin Gonsalves has recently circulated a mail which terms the bill as “terrible”, and I think that we should welcome Colin’s intervention since it has initiated debate on this bill, which deals with an area which would be recognised as being of major importance.I would like to argue that the areas of concern highlighted by Colin are important and valid. However, many of these are implicitly addressed in the bill, requiring more explicit and categorical provisions, or they can be incorporated in the framework of the bill. This is a first draft wherein modifications and changes can very much still be made. Hence while clarifying, making explicit and more clearly defining various important provisions, it is not useful to junk the entire draft as being “terrible”. In other words, it is very important to appreciate and preserve the core of the bill – a detailed and clearly spelt out system of health rights which is unprecedented (though urgently needed) in our country as of today – while eliminating ambiguity on key provisions esp. access to universal, free health care. If we throw out the baby i.e. the detailed set of provisions for Health rights along with the bathwater i.e. the inadequate framing of certain provisions, we will remain at square zero, where we stand today. The starting point today is widespread, massive denial of Health rights of citizens at multiple levels, in different forms in both the public health system and the private medical sector. There is effectively no legal provision (except perhaps for the very inadequate and limited ‘Consumer protection act’) which protects the Health rights of citizens in India. In this context, let us first recognise that the bill makes a genuine attempt to establish comprehensive Health rights of people in India, and then let us definitely clarify and sharpen key provisions as required. In other words, I will argue that demolishing the bill is not the way forward – improving it is. We also need to recognise the areas of Health policy and Health system functioning which must be addressed in parallel – since as we all know, an Act does not stand in isolation, but is contextualized by the systemic structures actually existing on the ground. While a major advance in furthering people’s health rights could be made through the medium of such an act, this must be accompanied by corresponding changes in Health policy and the functioning of the Health system. We should take the drafting of this act as an opportunity to raise related issues regarding strengthening of the Public health system, regulation of the private sector and an effective system for Universal, free access to health care. Yet even a perfectly worded act would become genuinely effective only if there is corresponding Health system to fulfil the rights defined in the act. This is the parallel challenge that we need to take up, while defining people’s health rights in the act. Coming to the main comments made by Colin, his major point is that free and universal access to health care is not effectively provided for in the bill:“I would like you to take a closer look at the Bill as it is currently drafted. Take a look at section 3 (c) and (d) which provides for free and universal access to health care services only for the vulnerable and marginalized persons today. While the beginning part of 3 (c) starts well, the proviso makes it the “immediate duty” to provide free and universal health care services only for the “vulnerable and marginalized people”. Let us look at the present drafting under Chapter II titled “OBLIGATIONS OF GOVERNMENTS IN RELATION TO HEALTH”. Under “General obligations towards progressive realization of health and well-being” it is stated that: “Government of India and the State Governments have the following general obligations at all times, within the maximum limits of their available resources, towards the progressive realization of health and well being of every person in the country.(a) Undertake appropriate and adequate budgetary measures, as per the globally accepted norms, to satisfy, the obligations and rights set out herein, throughout ensuring transparency and equity in the allocation, planning and rational allocation and distribution of resources for health and health related issues and concerns;(b) Take all measures and steps, for addressing bio-medical determinants as well as the underlying socio-economic, cultural and environmental determinants of health and wellbeing to ensure the enjoyment of right to health and well-being of every person, equally and without any discrimination;(c) Provide free and universal access to health care services and ensure that there shall not be any denial of health care directly or indirectly, to anyone, by any health care service provider, public or private, including for profit and not for profit service providers, by laying down minimum standards and appropriate regulatory mechanism; Provided that notwithstanding the above the Governments have an immediate duty to prioritize the most vulnerable and marginalized persons and groups, who are unable themselves to access means for adequate and appropriate health care services, and ensuring them at least the minimum conditions of health care”(throughout this piece, I have added emphasis in places to the excerpts from the bill)I would think that the basic principle of free and universal access to health care services is laid down quite clearly here. However the second sentence in (c) definitely adds an element of ambiguity and a possible interpretation (though not actually mentioned) that limited social categories would be prioritized. Yet if we see the definition of ‘vulnerable and marginalized individuals or groups’ given in the bill (section 2 qq) it is as follows:“vulnerable and marginalised individuals or groups” means individuals or groups who require special attention due to their physical conditions, or who are marginalised due to their social or economic status or conditions or due to their historical, traditional and/or current exclusion from political power and resources, including but not limited to: women, children, adolescents, older persons, persons with disabilities (mental and physical), persons with stigmatized, communicable diseases (like HIV/AIDS, leprosy), persons from Scheduled Castes (SCs), persons from Scheduled Tribes (STs), people of rural or remote areas, trafficked persons, migrant sections of population, internally displaced persons, persons in conflict situations, refugees.”This is not just ‘BPL’ persons as assumed by Colin; in fact BPL criterion is not mentioned anywhere in the bill. Nevertheless what needs to be clarified is that prioritization for these groups would be in terms of ensuring special services (as per their special or additional health needs) or eliminating discrimination due to their social exclusion. Such attention to populations with special needs or excluded groups should in no way dilute or reduce the Universal entitlement to health care. Hence section 3 (c) needs to be reworded in a manner that any prioritization in terms of additional services for groups with special health needs or efforts to ensure services for excluded populations would be built within the framework of a system for free, universal access to health care. This would be a positive way to address the genuine, relevant suggestion which Colin has given: “It is possible for to argue that vulnerable and marginalized groups means everybody under the sun particularly having reference to section 2(qq). Looking at the section one could argue that all women, children, adolescents, older people etc. etc. come within the purview of the definition of vulnerable groups. If that is the intention then a vast majority of the population will be covered. Then say so. Draft the bill explicitly covering the vast part of the population. A substantial right given to a substantial section of the population which will go contrary to existing practices must be stated explicitly and cannot come in by way of a definition clause.” Of course this raises again the question – will a well worded act in itself be enough to bring about such a universal access system on the ground across the country? This brings us to Colin’s comments on defining ‘free and universal access to health services’: “Intriguingly the most critical phrase “free and universal access to health care services” set out in section 3(c) is nowhere defined in the Bill. If a patient is sent out to buy drugs is that ok? If she is denied a bed in a hospital or has to pay for food while she undergoes treatment is that fine? One would have thought that this is the section which needs the most careful elaboration since the user fee system has spread so widely that virtually nothing remains of the public health care system and it is rotting from within.”Let us look at some of the provisions made in the present bill, with a view to strengthening, elaborating and consolidating them as required: “Chapter II section 4. Core obligations regarding underlying determinants of health: Within the framework of general obligations mentioned above, the core obligations of Governments towards right to health and well-being shall include the minimum essential levels of the following obligations towards the underlying determinants of health: (a) Ensure equitable distribution of and access to essential health facilities, goods, drugs, services and conditions to all, and especially for vulnerable or marginalized groups; …(f) To devise, adopt, implement, and periodically review, health policies, strategies and plans of action, on the basis of epidemiological, sociological and environmental evidence, addressing the health concerns of the whole population, which shall include methods such as right to health indicators and benchmarks, by which progress can be closely monitored, and evaluate them on the basis of outputs. …Chapter II Section 5. Obligations to provide access to quality health care services: The Governments shall also carry out the following as their obligations of comparable priority towards right to health and well being of all:a) Ensure all the rights related to health care as laid down under this Act”These rights are laid out in the next chapter -CHAPTER IIISection 9. Right to access, use and enjoy: Every person has the right to access, use and enjoy all the facilities, goods, services, programmes and conditions necessary for ensuring the right to health, including but not limited to at least the following:(a) Right to food;(b) Right to water;(c) Right to sanitation;(d) Right to housing; (e) Right to appropriate health care, and health care related functional equipment and other infrastructure, trained medical and professional personnel, and essential drugs;Appropriate health-related IEC, including on sexual and reproductive health, to be able to make more informed health related choices;Section 14. Users’ Rights to health care (Users’ Rights): Following are the rights of users of health care: (2) Right to seek: Every person has the right to approach and seek health care facilities, goods, services, programmes and conditions, equitably, without discrimination;(3) Right to receive: Every user has the right to receive, use and enjoy, and right not to be denied, health care appropriate to that person’s health needsAs a broad framework, this is quite a comprehensive set of entitlements to health care. However, what needs to be further clarified and defined is the following:a. The scope of entitlements in the public health system – this should be specified as free, universal services without targeting, range of services being appropriate to the level of the public health facility. However specific details in this regard (e.g. hospital food) are likely to come under rules, not in the act itself.b. As noted by Colin the issue of user fees is not explicitly mentioned in the bill, this needs to be explicitly addressed; the position of many of us as health and social activists has been that user fees should be abolished in public health facilities, such a policy change needs to be reflected in the bill. c. What is the nature of service entitlements in the private medical sector –in the current draft emergency services are to be ensured even in private facilities, irrespective of ability to pay. However if any other services in the private sector are to be given free of cost or irrespective of paying ability, then some public payment mechanism will need to be put in place since for-profit private hospitals cannot be expected to continuously provide free care to the general public. This needs very careful discussion, and would be based on what kind of model for publicly funded, regulated private provision is envisaged.Colin makes a rather sweeping comment that the bill does not require any strengthening of the public health system:“Now look at section 3(c) once again. Government of India could close down their public health care system and that would be compatible with the provisions of this draft Bill because it nowhere requires the strengthening of the public health care system in India. A vulnerable person could be referred to a private hospital with the government undertaking to pay the expenses and that would be perfectly compatible with the provisions of this Bill. And don’t be mislead by the language of section 4(a) because that only ensures that whatever facilities, drugs etc. that exist are distributed equally. It does not guarantee the creation of additional facilities or quantities of drugs.” Here we should look at Chapter II, Section 4 (Core obligations regarding underlying determinants of health) para (f) in its totality:“(f) To devise, adopt, implement, and periodically review, health policies, strategies and plans of action, on the basis of epidemiological, sociological and environmental evidence, addressing the health concerns of the whole population, which shall include methods such as right to health indicators and benchmarks, by which progress can be closely monitored, and evaluate them on the basis of outputs.Provided that until the policies and plans are notified by the Central Government under this Act, the National Health Plan, (NHP) 2002, National Population Policy (NPP) 2000, National AIDS Control Programme-III (NACP-III), National Rural Health Mission (NRHM) and the National Urban Health Mission (NUHM), or any other existing plans, policies or programmes relating to health shall be deemed to be the plans, policies and programmes under this Act. However, within 6 months of this Act coming into force they would be assessed and where necessary, strengthened and modified, with reference to this Act, especially the rights and obligations provided for herein and its basic framework.”It is clearly mentioned that the existing Public health system will need to be assessed and as necessary strengthened and modified with a view to fulfilling the rights and obligations in the act. To reiterate, the bill gives in considerable detail in Chapter II the “General obligations towards progressive realization of health and well-being” where it is stated that: “Government of India and the State Governments have the following general obligations at all times, within the maximum limits of their available resources, towards the progressive realization of health and well being of every person in the country.(a) Undertake appropriate and adequate budgetary measures, as per the globally accepted norms, to satisfy, the obligations and rights set out herein, throughout ensuring transparency and equity in the allocation, planning and rational allocation and distribution of resources for health and health related issues and concerns;…(c) Provide free and universal access to health care services and ensure that there shall not be any denial of health care directly or indirectly, to anyone, by any health care service provider, public or private, including for profit and not for profit service providers, by laying down minimum standards and appropriate regulatory mechanism; Provided that notwithstanding the above the Governments have an immediate duty to prioritize the most vulnerable and marginalized persons and groups, who are unable themselves to access means for adequate and appropriate health care services, and ensuring them at least the minimum conditions of health care”And importantly in Schedule I, illustrations of the State’s obligations are clearly given: “Schedule IIllustrations of the State’s obligations to respect, protect, fulfill health rights(to be read with Section 6 of the Act)Given these Illustrations of obligation to fulfill:a) Giving recognition to the right to health comprehensively, preferably by way oflaws on all health related areas; undertaking legislation of new laws and/ oramendment of existing laws;b) Adopting health policies and appropriate strategies with plans of action forrealizing the right to health;c) Laying down equitable coverage norms and ensuring provision of a sufficientnumber of functional hospitals, clinics and other health-related facilities;d) Ensuring provision of guaranteed health services to all persons requiring theseservices, by public health facilities at various levels including sub-centre, PHC,CHC, Sub-divisional hospital and District hospitals in rural areas and similarlydefined levels in urban areas; Laying down standards (like IPHS) and normstowards quality assurance and improvement; protocols for treatment and othermedical interventions;e) Ensuring appropriate training of doctors and other medical personnel;f) Ensuring equal health care access to all, including preventive programmesagainst major infectious diseases; equal access for all to the underlyingdeterminants of health;g) Taking positive measures that enable and assist individuals and communities toenjoy the right to health, when individuals or a group are unable, for reasonsbeyond their control, to realize that right themselves by the means at theirdisposal;h) Ensuring that public health infrastructures provide for sexual and reproductivehealth services, including safe motherhood, particularly in rural areas …”Given the fact that this is a draft National Health Act, and not the text of a health policy or a specific health mission, this is a sufficiently broad framework within which the rules and regulations should definitely deal with further details of Public health system coverage norms and strengthened provisions. While these provisions can be further elaborated and improved, in the light of the above, Colin’s following sweeping observations seem unwarranted: “Government of India could close down their public health care system and that would be compatible with the provisions of this draft Bill because it nowhere requires the strengthening of the public health care system in India. A vulnerable person could be referred to a private hospital with the government undertaking to pay the expenses and that would be perfectly compatible with the provisions of this Bill. And don’t be mislead by the language of section 4(a) because that only ensures that whatever facilities, drugs etc. that exist are distributed equally. It does not guarantee the creation of additional facilities or quantities of drugs.” “… there is not a word about the need to strengthen the public health system. Similarly Chapter II which deals with the obligations of the government there is not a word about strengthening of the public health care system. Similarly in Section 6 which deals of the specific obligations of the Central Government and the State Government again there is no mention of the strengthening of the public hospitals, the CHC’s and the PHC’s. This core of the public health care system is not mentioned in the Bill at all!” While Colin’s concern about the need to strengthen the public health system would be strongly shared by all of us, dismissing the current draft bill including all the obligations of the Government mentioned above does not appear to be the way forward; what is required is further specifying and elaborating these obligations.Colin observes that the bill ‘lacks a heart’. I would like to note that the comprehensive set of Health rights for people (pages 18-27) laid out in the bill is its ‘heart’. The wide ranging rights to health care as well as social determinants of health proposed in the bill are to my knowledge unprecedented in any Indian official document till date. The private medical lobby would be expected to attack and oppose such legal rights (we have some experience of that in JSA-Maharashtra); in addition there would be resistance from short sighted Public health bureaucrats who may be uncomfortable with being held legally accountable. Very importantly, the Finance ministry and Planning commission may object to the significantly higher levels of public spending required for fulfilling State obligations (related not only to Health care but also food, water, sanitation, housing, environmental and occupational conditions etc.) according to such a broad act. But it will be a tragedy if such establishment elements expected to be antithetical to the bill are joined by social activists who rubbish the bill outright, instead of critically improving it; that would ill serve the basic cause of establishing Health rights.As far as JSA is concerned, the covering note on the NRHM website says:“In recent years, there has been a growing demand from people of India for legal recognition of “Right to Health Care” and other health rights.Jan Swasthya Abhiyan (JSA), the Indian chapter of global People’s Health Movement (PHM) has been leading this demand. Five years back, in 2004, in collaboration with the National Human Rights Commission (NHRC) of India, JSA had organised several public hearings across the country on right to health care. The findings of these public hearings culminated in a set of detailed recommendations by NHRC to the Indian government, including enactment of a national law for recognizing and operationalising the rights to health care in India.”This is factually accurate, in fact JSA has also demanded a National Health Act. But in itself the above statement does not imply that JSA has ‘backed’ or endorsed the current draft; in fact the JSA coalition is yet to discuss the National Health bill or to develop a consensus or response to it. To conclude, in the current situation it will be good if all social activists who are concerned about this potentially pathbreaking legislation, can discuss and share the improvements required and clarifications that need to be incorporated to strengthen the bill. Universal free access to health care with elimination of user fees should be at the centre of this agenda. I fully share Colin’s concern about the targeting of various social schemes which is part of the neo-liberal agenda, and which we need to strongly critique and oppose. One part of this struggle would be to treat emerging acts like the Food security act or the National health bill as arenas for widespread social debate, which we need to push away from targeting and squarely into the framework of universal access. Let us use the framework of rights in the current bill as a starting point, and expand and modify it to ensure that such an act, ensuring the universal right to health services and health determinants, can emerge through a pro-people social process. While carrying on the debate among ourselves, we will need to combine all our critical energies to help achieve these much-needed rights for the people of India.

Name=Abhay Shukla
E-mail=abayshukla1@gmail.com

Comments=It is surprized to see that bill is not in Hindi language while asking for people's participation. Please note that a good feedback will be received only when using local languages.This will ensure participation from general public.

Name=Shailesh Bindal
E-mail=shaileshbindal@hotmail.com

Comments=I had seen the National Health bill. I am of a openion that we need to include the registartion and regulation of Health care establishements and aslo to see that some of the rights like right to food etc a public health personnel can't provide the same.

We need to have a relook at the provisions made under proposed bill.

Name=Dipesh Dave
E-mail=ngoco-hnfw@gujarat.gov.in

National Health Bill, 2009 – please read, please discuss. Its terrible.

Dear Friends,While preparing a draft ‘Right to Food Act’ for the Right to Food Campaign, I came across a copy of the Government of India Working Draft, Version January 2009 of the National Health Bill, 2009. As I was alarmed by the contents of this draft, I thought perhaps I might share with you my principal concerns for your consideration. You know that 70% of the Indian populations live at or below the poverty line in terms of food intake. The Arjun Singh Committee found 60% of the population living below Rs. 20/- per day. Looking at poverty from any angle it is obvious that even with a very stingy poverty line India has 70% of the population living with hunger.With my limited experience doing health right cases in courts, the principal problem appears to be that the poor are charged certain amounts for basic health care services. The World Bank sponsored user fee system has become widespread and has resulted in the denial of health care services to millions. Though on paper there appears to be some sort of right for those below the poverty line to get health services free; in practice this right has been obliterated and even in public hospitals persons with BPL cards are forced to buy medicines and pay for their treatment. I would have thought that the National Health Bill, 2009 would have addressed that issue squarely. What I found was, quite to the contrary, that the Bill legitimizes a system where the poor do not get health services free (except for a very targeted section of the population) and the poor are required to pay user fees provided they are “affordable”. I would like you to take a closer look at the Bill as it is currently drafted. Take a look at section 3 (c) and (d) which provides for free and universal access to health care services only for the vulnerable and marginalized persons today. While the beginning part of 3 (c) starts well, the proviso makes it the “immediate duty” to provide free and universal health care services only for the “vulnerable and marginalized people”. Having participated in the debates on targeting in the Public Distribution System, I was aghast that such language would be used in the draft Bill. On the Right to Food, the PDS covers 37% of the population as BPL and is much wider than vulnerable and marginalized groups. The phrase “vulnerable and marginalized groups” has come to mean primitive tribes, women headed households and so on. The vulnerable and marginalized groups get what is known as the AAY card and are supposed to be the poorest of the poor coming to about 10% of the entire population or approximately the lower one third of the BPL list. In the RTF Act that we are drafting, the consensus throughout the country is that even this 36% is no longer acceptable given that 70% of the population consumes less than 2400 calories per person per day, and therefore the RTF Campaign has asked for universalization with exclusions. What is excluded is a creamy layer of government servants, landlords with tractors and so on. It is hoped that such a formulation will bring the Right to Food to 70% of the population. The RTF Act you must know covers only a small part of the Right to Food and therefore we have now titled our draft “The Food Entitlements Bill, 2009”. Besides PDS, it also covers ICDS and various other schemes. One would have thought that a National Health Bill, 2009 would begin first of all, by recognizing the awesome levels of poverty in India. In that sense it appears as if a fundamental discussion which should have preceded the beginning of the drafting process, appears not to have been undertaken. I say this because the Bill is very thoughtful and generous in its scope as well as meticulously detailed in its drafting; but it lacks a heart. The core of the Bill is not only weak but also anti-poor. Now look at section 3 closely. It is possible for to argue that vulnerable and marginalized groups means everybody under the sun particularly having reference to section 2(qq). Looking at the section one could argue that all women, children, adolescents, older people etc. etc. come within the purview of the definition of vulnerable groups. If that is the intention then a vast majority of the population will be covered. Then say so. Draft the bill explicitly covering the vast part of the population. A substantial right given to a substantial section of the population which will go contrary to existing practices must be stated explicitly and cannot come in by way of a definition clause. But one cannot really get away from the long history of the use of this term in India. In the Right to Food Campaign we have had our share of the debate with certain persons preferring to focus on the vulnerable and the marginalized groups while the majority view in the RTF Campaign is to universalize as much as possible the right to food given the widespread nature of poverty and hunger. Therefore try as we may to pretend that the phrase will actually cover the majority of the poor in India, the reality will be that the immediate duty of the state will only be to provide free and universal health care to those whom the state has defined as being vulnerable and marginalized. This is a well settled list that crops up time and again in the Right to Food debates and it will be difficult to extricate ourselves from this list.I thought it would be most obvious that the 70% of the population who consume less food than required by the poverty line would have a right to free and universal access to health care services. This should be at the heart of the National Health Bill, 2009. Section 9 deals with the meaning of the word ‘accessible’ and section 9 (b) (iii) defines ‘accessibility’ as ‘economic access or affordability’. ‘Affordable’ is defined in section 2 (a). The structure that emerges is free service for the vulnerable and marginalized and affordable services for the rest of the poor. This is exactly the ideology of the “user fee” system pushed by the World Bank in India. This is the same thinking behind the water privatization attempt of the World Bank in Delhi. Everyone must pay what is affordable including the poor who are below the poverty line. Now if one looks at section 14(iv) one finds reference for the first time to the non-payment of fees or charges but only in the context of emergency treatment and care. Intriguingly the most critical phrase “free and universal access to health care services” set out in section 3(c) is nowhere defined in the Bill. If a patient is sent out to buy drugs is that ok? If she is denied a bed in a hospital or has to pay for food while she undergoes treatment is that fine? One would have thought that this is the section which needs the most careful elaboration since the user fee system has spread so widely that virtually nothing remains of the public health care system and it is rotting from within. Almost every person including those from the vulnerable and marginalized groups have had this experience of having to buy medicines from the chemists after being examined in a public hospital. Now look at section 3(c) once again. Government of India could close down their public health care system and that would be compatible with the provisions of this draft Bill because it nowhere requires the strengthening of the public health care system in India. A vulnerable person could be referred to a private hospital with the government undertaking to pay the expenses and that would be perfectly compatible with the provisions of this Bill. And don’t be mislead by the language of section 4(a) because that only ensures that whatever facilities, drugs etc. that exist are distributed equally. It does not guarantee the creation of additional facilities or quantities of drugs. Chapter VIII is supposed to be financial memorandum but in the January 09 version it is blank. It is important to take a close look at this financial memorandum because that will tell the whole story. My guess is that the Govt. of India has no intention of providing free and universal health care services to the poor in India and intends to continue on its path of privatization and this National Health Bill, 2009 will provide the camouflage under which government will decimate the public health care system.Finally please take a look at the experiences of civil society groups working on food and education. In the Right to Food Campaign we saw a horrible draft circulated from government side and it was only when a hue and cry was raised by movement organizations that a collective and democratic process of peoples organizations drafting their own Bill, began. Similarly the Right to Education Act, 2009 is a terrible piece of legislation and you can get a detailed critique of that in the latest issue of Combat Law. The National Health Bill, 2009 follows in the same trend. It has, as I mentioned earlier exquisite detailing and this will no doubt please many. But at its core it fails to guarantee genuine free health care for the people of India. The framework is entirely that of globalization where the state is not seeing as being necessary for providing health care services and is relegated to a subordinate role of “regulating” the private sector which is expected to provide the bulk of the services. The poor will go to the private sector and hopefully may get subsidized services because huge funds of the state will be channeled to the private sector in terms of subsidies. Public sector funding will suffer. Public institutions already in a deplorable state will decline further. This is what the bill seeks to legitimize. In fact in the preamble itself while it is stated that “there is need to have an overarching legal framework and a common set of standards, norms and values to facilitate the Governments’ stewardship of private health sector as a partner, there is not a word about the need to strengthen the public health system. Similarly Chapter II which deals with the obligations of the government there is not a word about strengthening of the public health care system. Similarly in Section 6 which deals of the specific obligations of the Central Government and the State Government again there is no mention of the strengthening of the public hospitals, the CHC’s and the PHC’s. This core of the public health care system is not mentioned in the Bill at all! What is equally worrying is that JSA is mentioned in the covering note to the Bill and “that It was then examined by an especially constituted Task Force comprising eminent lawyers, public health experts, medical professionals and public administrators from across the country. It was also presented before some select groups of experts from diverse fields. The feedback was used to continually revise and improve upon the original draft”. This gives the impression that health organizations and experts throughout the country have backed this Bill!

Colin Gonsalves

Comments of Draft National Health Bill taking into account the aim and objectives of protect, promote and support breastfeeding implementing the Infant Milk Substitutes Feeding Bottles, and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992 as amended in 2003.1.Include Infant Milk Substitutes Feeding Bottles, and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992 as amended in 2003, list of Acts on page 72. In the Definitions : Add in ‘Right to food’ means …should specifically include right of every child to breastfeeding optimally, [within one hour of birth and exclusive breastfeeding for the first six months, continued breastfeeding for 2 years or beyond according to the global and national guidelines]3. Page 14 para 2 in 3rd line add word after underlying determinants of health : ‘optimal breastfeeding for first two years’,4. Page 15 In 5 d, add ‘including optimal breastfeeding for first 2 years’ after healthy lifestyles5. In Section 6 add one element in the list a. “prevention of child malnutrition” and change the rest to b….kThe Breastfeeding Promotion Network of India(BPNI)February 21 2009

Name=Dr Arun Gupta
E-mail=arun@ibfanasia.org