The virus exposed our vulnerability and our helplessness as a citizen as far as health care is concerned. Not only that, but the COVID-19 outbreak has also opened our eyes towards the debacle healthcare system. Everyday scrolling Facebook news of deaths filled the newsfeed. Some succumbed because of the virus some succumbed not getting the proper treatment from the doctors, hospitals. The travesty of the current medical system is that a prospective patient does not get full attention from doctors until the test report proves him COVID-19 positive. It is a very alarming situation for our health sector that denial of such attentions would leave massive death toll out of medical treatment.
Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life of dignity. The human right to health is recognized in numerous international instruments. The right to health means that States must produce conditions in which everyone can be as healthy as possible. The right to health does not mean the right to be healthy. The right to health has been enshrined in numerous international and regional human rights treaties. We have also something backed by the supreme law of the country. According to Article 18 (1) of the Constitution of Bangladesh stated that; “The State shall regard the raising of the level of nutrition and the improvement of public health as among its primary duties, and in particular shall adopt effective measures to prevent the consumption, except for medical purposes or such other purposes as may be prescribed by law, of alcoholic and other intoxicating drinks and of drugs which are injurious to health.” Also, the Fundamental Principles of State Policy states that the State has been obligated to ensure the “necessities of life, including food, clothing, shelter, education and medical care” under article 15 of the constitution of Bangladesh.
Whatever happening right now is nothing but medical malpractice. Claims for such medical malpractice, that is, clinical or medical negligence, arise when doctors, healthcare service providers, and hospitals owe a duty of care to individuals admitted under their care, and fail to fulfil such duty, or do not admit the patient in an emergency, causing the patient to suffer pain and loss of amenity. We see in our daily life, someone objecting of neglecting the medical care, or a rigid denial or delays in admission of serious patients. The legal framework in such cases hardly can be seen as it falls under Tort law which is not introduced yet formally. However, under the penal code 1860, the criminal complaints about medical negligence can be filed against doctors alleging commission of offences under Section 304A which states causing death by negligence or Sections 336 or 338 of the Penal Code. Also, one can file a complaint in the form of an application addressing the registrar of the Bangladesh Medical and Dental Council (BMDC) regarding any grievance caused by any medical malpractice. After receiving that, the BMDC will form a committee to enquire into the matter. If the accusation is proved, they can take action against that accused. Such action ranges from giving warning to cancellation of registration depending on the gravity of wrong committed under the Medical and Dental Council Act, 2010 and the Code of Medical ethics adopted by the BMDC. Despite such legal provisions, very few cases can be seen in terms of such concern. A famous ruling by Mr. Justice AHM Shamsuddin Chowdhury Manik and Mr. Justice Jahangir Hossain directed Labaid Hospital to pay the wife of Mridul Kanti Chakrabarty, a Dhaka University professor, who died owing to delayed medical treatment and alleged negligence on the part of the hospital in 2011. Not only that few other tort cases can be seen such as the High Court has announced the verdict in a compensation case ordering payment of Tk4.62 crore to the family of eminent filmmaker Tareque Masud, killed in a road accident in 2011. A High Court bench of Justice Zinat Ara and Justice Kazi Md Ejarul Haque Akondo finished delivering the verdict.
Lately, The High Court observed that no patient, regardless of whether they are infected with coronavirus, can be deprived of treatment at any government or private hospital. The HCD retreated that “If a patient dies or is deprived of treatment at a hospital due to negligence, it would be considered a criminal and punishable offence.” A very timely response from our judiciary at a time a very regret for the executive too whose responsibility was to ensure it. Nevertheless, being a citizen we all have the right to get proper treatment even in this hazardous situation. The medical profession is considered as a noble job. And this noble profession comes with a huge responsibility. One mistake can be the reason for the end of one’s life or can make irreparable damage.
But one thing also to be accounted that our current health system has completely fallen and private hospitals are refrained to attend and give proper care of the patient. The government showed strictness but we did not see any action in this regard. This actionless effort ensuring proper health system would leave no inch for its wrecks. The people from lower-income, middle income got no backing to get admitted in CMH or highly equipped hospitals i.e. I doubt how many lefts yet. So, the government should look upon it with utmost sincerity before the demise of so many lives.
The piece was specially contributed by Nazia Tahsin a 3rd year Law student, Bangladesh University of Professionals.