Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors  8853/2008 and Jaitun v Janpura Maternity Home & Ors  10700/2009 (High Court of Delhi, 4 June 2010)
The High Court of Delhi has issued directions in response to the systemic failures resulting in the denial of benefits to two mothers below the poverty line (BPL) during their pregnancy and immediately after, in violation of the right to life contained in art 21 of the Constitution of India and international human rights obligations incorporated by the Protection of Human Rights Act 1993.
Under the Constitution, the right to life is comprised of two inalienable survival rights: the right to health (which includes the right to access and receive a minimum standard of treatment and care in public health facilities, and in particular, the reproductive rights of the mother); and the right to food.
The High Court determined two petitions simultaneously concerning deficiencies in the implementation of a cluster of Government funded schemes aimed at reducing infant and maternal mortality, resulting in the denial of benefits to two mothers below the poverty line during their pregnancy and immediately thereafter.
Shanti Devi and her daughter Archana
Shanti Devi was a mother of two children (of four pregnancies). She was of poor health and suffered from anaemia and tuberculosis.
Seven months into her fifth pregnancy, Shanti Devi had severe oedema, anaemia and fever, and had also fallen on the stairs of a building resulting in a fractured humerus and multiple fractured ribs. She saw a midwife and was referred to Faridabad Hospital. Due to insufficient finances, Shanti Devi was unable to attend the hospital for two weeks.
The hospital advised that Shanti Devi had miscarried the child and referred her to Sanjay Gandhi Hospital. Sanjay Gandhi Hospital then on referred Shanti Devi to Saroj Hospital due to insufficient facilities for the removal of the foetus. Despite providing the relevant BPL documentation on arrival, Saroj Hospital refused treatment on the ground that Shanti Devi was not below the poverty line (BPL patients in urgent need of medical attention can obtain treatment at no cost).
Shanti Devi was then taken back to Sanjay Gandhi Hospital which then referred her to Deen Dayal Hospital, where she was diagnosed with lack of platelets derangement due to a lack of protein during pregnancy and the foetus was removed.
One year later Shanti Devi became pregnant for the sixth time and died giving birth to a pre-mature baby at home without the presence of a skilled birth attendant. A maternal audit of the death of Shanti Devi was conducted and the report concluded that the primary cause of Shanti Devi’s death was postpartum haemorrhage due to retained placenta.
Additional indirect and contributing factors to her death were broadly described as:
- socio-economic status which denied access to needed resources and services; and
- poor health condition which was a culmination of anaemia, tuberculosis and repeated, unsafe pregnancies.
Fatema and Alisha
Fatema is poor, homeless, uneducated, suffering from epilepsy and living under a tree in Jangpura, New Delhi. Twice during her pregnancy, Fatema visited a Maternity Home for vaccinations and to inquire about the cash benefits that she could avail upon delivery. Fatema received no response or assistance from the authorities.
Fatema delivered her daughter, Alisha, under a tree in full public view without access to skilled health care and medical guidance. The Maternity Home was informed of the delivery the same day, however no visit was made to Fatima by the staff of the Hospital. Five days after the birth, Fatema brought Alisha to the Maternity Home for her vaccination.
The child was not examined and Fatema was not given any advice or medicines. Fatema was advised that she was anaemic, although this was in the absence of any blood test. Fatema was administered medicines and issued a discharge slip so that she could get a birth certificate for Alisha and cash assistance under a particular Government scheme.
Fatema was refused payment by the Maternity Home on numerous occasions. On the intervention of a social activist, Fatema was able to get Rs. 550 from the Maternity Hospital. Fatema and Alisha’s health continued to deteriorate and they did not receive any nutrition or health care under the relevant schemes.
Indian Supreme Court jurisprudence has aimed to protect and enforce the right to health and the right to food consistently with international human rights law. In particular, international human rights conventions have been incorporated in Indian domestic law through the Protection of Human Rights Act 1993.
The Supreme Court has also set down the content of the right to health and food and, consistent with international human rights law, the obligations of conduct and result. These rights are enforceable through a continuing mandamus by the Supreme Court which the High Court is obliged to carry out to ensure the implementation of those orders.
In response to the two petitions, the Government of India stated that the responsibility for implementation of the schemes was essentially with the State governments and that the relevant State Governments were replying on the status of implementation of the order of the Supreme Court.
In commenting on the current status of the health schemes, the High Court reinforced the notion that there cannot be a situation where a pregnant woman who is in need of care and assistance is turned away from a Government health facility only on the ground that she has not been able to demonstrate her BPL status or her ‘eligibility’. In addition, it noted that the approach of the government, both Central and State, in operationalising the schemes should be to ensure that as many people as possible are covered by the scheme and are not denied the benefits. The onerous burden on persons BPL to prove that they are persons in need of urgent medical assistance constitutes a major barrier to their access to the services.
The Court observed that these two instances were not brought to the notice of the central government and there was also no inbuilt mechanism for corrective action, restitution and compensation in the event of the failure of any beneficiary to gain access to the services under the schemes.
In neither of the cases of Fatema or Shanti Devi were the substantive benefits under particular schemes made available and a significant feature of both cases is that both women delivered their babies outside of the institution. The schemes envisage that even for home deliveries, assistance has to be provided to the pregnant women.
During her life time Shanti Devi did not get the benefit offered under the relevant schemes which constituted a major failure which aggravated the causes that ultimately led to her avoidable death.
The shortcomings identified by the Court in the working of the schemes were as follows:
- Lack of ‘portability’ of the schemes across states – persons declared BPL in any state of the country should be assured the continued availability of such access to public health care services throughout the country.
- Interaction of cash assistance under the schemes – benefits should be made available irrespective of the number of live births or the age of the mother to ensure pregnant women across the country are not denied cash assistance.
- Overlap of the schemes – there must be an identified place for women to approach to be given the benefits under various schemes.
- Administration of nutritional and health scheme overhaul (deplorable condition) – the presence of health facilities should be clearly labelled and identified and be fitted with the necessary equipment to carry out the tests. In the rural set up, monthly camps should be held at an identified place where pregnant women and young children can undergo health check-ups.
- Referral system to be improved – the system should ensure safe and prompt transportation of pregnant women from their paces of residence to public health institutions or private hospitals and vice-versa. Existing ambulance and transport services require augmenting and improving significantly.
Other directions were also issued to ensure that the benefits under the various schemes are not denied to the beneficiaries and that assistance is provided promptly at the nearest point where it can be accessed; for example, the imposition of registers and reporting systems as well as constant review and monitoring of the implementation of the schemes.
Relevance to the Victorian Charter
This case sheds light on the potential scope of the right to life contained in s 9 of the Victorian Charter with respect to reproductive rights and the right to health and nutrition during and following pregnancy.
In addition, this decision is relevant to the interpretation of the right to protection of families and children in the context of ss 17 and 8 of the Victorian Charter, in particular, the right of the child to be protected by society and the State, without discrimination.
The decision is at www.escr-net.org/usr_doc/Laxmi_Mandal_Court_Decision.pdf.
Kate Moore is a volunteer lawyer with the Human Rights Law Resource Centre