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