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