The unprecedented public health emergency COVID-19 has posed to the world, has demonstrated the myriad ways in which different jurisdictions are tackling the situation. Grappling with the unrelenting rise in the number of COVID cases, the situation has revealed deficiencies in law-making, legislative and executive, to address difficult constitutional medico-legal questions which has the potential of opening the floodgates to massive litigation.
The rapid spread of COVID-19 will likely result in the number of intensive care patients exceeding capacity. Decisions of allotting scarce resources from one patient to another shall also require consideration. How does a Clinician determine which patient to treat without violating his legal, ethical and moral duties? What parameters must be taken into consideration to save different human lives? An extremely challenging question is extraneous factors influencing the decision of allocating resources. Who decides, that a ventilator be allotted to a father of three over an aged widow? The Constitution of India guarantees right to equality and right to life to every citizen. How would an action of giving preference to younger people over the elderly be justified under these enshrined constitutional rights? Would Section 4 of the Epidemic Diseases Act, which exempts suits or legal proceedings taken in good faith, expressly ratify the acts of doctors who could likely be influenced by such superfluous factors? How does the state propose to tackle possible legal ramifications of either withholding or withdrawing a ventilator from a patient who would ordinarily receive such aid in the absence of a public health emergency? Given that there is no legislative enactment, rules prescribed by the state or any regulation adopted by the local administration under the sanction of the state government to determine the sanctity of actions being taken by various states and the Centre, the potential of setting off a maelstrom of legal disputes looms large over the courts. In an emergency situation, such as the present pandemic, the circumstances are greatly altered. Consequently, decisions or actions that might normally constitute negligence in routine care may not constitute negligence in an emergency. Yet, Clinicians could be sued for negligence, medical malpractices, criminal charges and civil suits by survivors of the thousands of people who could die as a result of ventilator triage decisions. The medical ‘standard of care’ in India which is basically what a minimally competent physician in the same field would do in the same situation, with the same resources, has evolved largely from the decisions of the Supreme Court. There is no legislation which defines the applicable standard of care in different situations such as a pandemic which shall differ from the standard of care under ordinary circumstances. A clinician facing such charges could argue that removing the ventilator helped in saving the life of a patient who had a higher survival rate. However, if the loss of one life is nullified by saving another life, it falls foul of the Constitution which prescribes equal value to each life. Other significant constitutional questions delve upon the state’s power to restrict the movement of people and enactment of travel restrictions violating interstate commerce thus falling foul of Article 301 of the Constitution. The government has adopted various measures to curb the spread of the virus. However, each public health strategy adopted by the government entails legal ramifications. Mandatory testing, reporting, isolation and quarantine are strategies which curtail individual liberties as they can be physically intrusive, violating individual autonomy and the norms of confidentiality. Although the Constitution does not explicitly mention a right of privacy, the Supreme Court of India in its decisions has recognized that a right of personal privacy exists and that certain areas of privacy are guaranteed under Article 21 of the Constitution.
While the full legal impact is difficult to ascertain, at the federal level and state level mere reliance upon the archaic Epidemic Diseases Act shall hardly be an effective counter to constitutional principles enshrined under the Constitution of India. The United States has adopted the "Crisis Standards of Care" guidelines to determine how the medical community should allocate scarce resources such as ventilators and intensive care beds during a catastrophic event requiring substantial changes in usual health care operations. The state of Himachal Pradesh has retrospectively notified the Himachal Pradesh Epidemic Disease (COVID-19) Regulations, 2020 which has defined COVID-19 as an epidemic disease and outlines important terms such as Quarantine & Isolation facilities. It has also empowered a Surveillance Personnel to discharge all necessary functions to contain the spread of the disease. However, pertinent legal quandaries still remain unaddressed.
The present vacuum in determining these decisions will largely be left to interpretations by Courts of law. The Centre and States must bring into place either legislative enactments, Ordinances or Regulations to provide a solution to these impending questions to safeguard themselves and health care officials from potential future litigation. In such a situation, since the Parliament is not in session, it is imperative that the Executive exercises its functions in tackling the fate of all actions taken in this unprecedented scenario.