Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]

[This is a guest post by Dhvani Mehta and Akshat Agarwal.]

The Supreme Court’s interim order on free testing by private labs has led to a lot of controversy while raising several interesting constitutional questions. Gautam Bhatia in his defence of the order argues that the coronavirus pandemic is not only a public health issue but also an issue of equality. Of course, all public health issues are ultimately questions of equality: a public health system should provide equal access to a uniformly high quality of healthcare goods and services. However, as has already been argued, this applies to all healthcare conditions, not merely the current pandemic. A weak public healthcare system always has a disproportionate, and therefore, unequal impact on the poor. Such inequality cries out for a universal healthcare system with access for all. Under such a system, this question of free testing would not have to be debated at all.

However, under an imperfect health system like India’s, with a fuzzy jurisprudence on the components of the right to health, singling out the right to access a diagnostic test for a particular disease (even though it is novel), on the ground of affordability, sets the precedent for piecemeal litigation that aims to make up for the deficiencies of public healthcare one disease at a time.

This is not to say that the public healthcare system cannot be made to account for its failings in court–the right to equality itself has been used effectively to guarantee access to treatment for vulnerable groups like HIV/AIDS patients and persons affected by leprosy. Accountability and transparency are key components of the right to health, and must be used in court to require the State to provide reasoned explanations for the deficiencies of its public healthcare system. However, if the Brazil experience is anything to go by, right to health cases that demand free access to a specific drug or treatment may be used perversely by those with the resources for such litigation, with the effect of skewing health spending priorities away from diseases that disproportionately affect the poor.

In our opinion, the outcome of the Court’s order is the right one. Individuals should not have to bear the costs of the test (We agree with Bhatia that the cost should be borne by the State). This seems especially justified in a scenario where the State is mandating testing, with potential legal liability for failing to get tested (in Delhi and Uttar Pradesh, this could attract a penalty under section 188 of the Indian Penal Code). However, we believe that it is justified primarily on the grounds of public health, rather than the right to health or equality.

In particular, we argue that:

  1. The denial of a free test to an individual does not necessarily violate their right to health, given the nature of the disease, at least for asymptomatic patients
  2. The argument that the right to a free test is grounded in the right to equality is essentially an argument for the right to access to universal healthcare, which must logically be extended to all healthcare goods and services, and not an issue of price discrimination, as has been argued in the petition and by Bhatia
  3. The focus of the petition on the right to free testing is a red herring. It takes attention away from the more significant issue of access to treatment and expanding testing criteria.

Link between the Right to Free Testing and the Right to Health

 The denial of a free test to a person violates their right to health if it prevents them from obtaining the care they need. This is unlikely to be the case for asymptomatic persons, who do not exhibit any signs of the disease. Such persons are by definition not affected. There is no specific guidance for the management of asymptomatic patients apart from general precautions to prevent the spread of the disease that are available in any case through public advisories. Rather than the right to health of such patients, it is the right to health of persons around them that may be violated if they are infected because of a lack of testing.

It would be incongruous, however, to argue that the right to health of one person creates a right in another person to get tested in order to not be a carrier. Instead, this is more simply understood as a restriction on this other person i.e. one individual’s right not to get infected requires another person to obtain a test. This is a restriction that is imposed in the interests of the right to health of millions of individuals, collectively recognised as a public health interest. This interest requires certain individuals to be tested. This requirement cannot be equated with a right to access a free test.

The question is admittedly different for symptomatic persons, where the denial of a free test has direct consequences for their health. However, as we argue next, this is better characterised as the denial of universal healthcare, rather than discrimination on the basis of the price of a specific diagnostic test.

Right to Equality as a Right to Access Universal Healthcare

The argument for testing as an equality issue is framed as, “a price-based Covid-19 test disproportionately impacts not just individual people who cannot afford it, but the people around them as well. In a situation of lockdown, where travel is effectively forbidden, the implication of this is that the danger is disproportionately served upon low-income clusters of people.”

As we understand it, this argument states that the lack of testing available to the poor will cause a greater spread of the disease among them. This, in itself, is a disproportionate impact. However, when this is coupled with their lack of access to quality treatment, the impact is exacerbated. This boils down to an argument about the right to access universal healthcare. Before going there, though, a crucial evidentiary burden must be satisfied.

It must be proved that for people who are eligible to get tested under the ICMR criteria, the State is unable to provide adequate testing. These persons are then forced to approach private labs for testing. This assumes that the public health infrastructure is currently inadequate to provide free testing to everyone who is required to be tested. In present times, however, there is inadequate data to conclude that public healthcare facilities are unable to meet testing demands. It is also difficult to conclude the exact extent of reliance on private labs and whether the lack of access to them due to associated costs is effectively preventing patients who are required to be tested from getting tested for Covid-19.

Beyond general averments, the petition before the Court does not provide any specific evidence to this effect. In any case, assessing such evidence would take the court beyond the scope of its competence. This is because the question of access to a free test is a public health, not rights-based issue.

The right in question is that of the right to access universal healthcare. It is hard to see how the Court could ground the right to a free Covid-19 test under this head, without extending it to other healthcare goods and services.

Free Testing as a Red Herring

In light of the specific WHO guidance, it can be nobody’s case that large scale testing for Covid-19 is not essential. In India public health facilities have been testing free of cost and before the Court’s order, the government has also urged private laboratories to provide tests free of cost if possible. In fact, access to Covid-19 testing has also been made freely available to PM-JAY beneficiaries. Thus, it is well acknowledged that testing is important.

However, merely focusing on free testing is a red-herring since effective management of the Covid crisis requires a combination of strategies. At the level of the individual, it would mean timely access to trained health workers and healthcare facilities with sufficient means to deliver quality treatment. At the level of public health, effective management would mean public health strategies aimed at quarantine and containment accompanied with public communication to retain trust in the State and the healthcare system.

Preventing the spread of the disease will also require expanding the criteria for testing. Granting the right to a free test while limiting the persons who are able to avail of it can only go so far.

We believe that the right to access universal healthcare is an integral component of the right to health. However, the ramifications of this are so massive that it is an issue that deserves weighty legislative consideration rather than fragmented, and potentially unequal, decision-making in court.

2 thoughts on “Coronavirus and the Constitution – XVI: The Supreme Court’s Free Testing Order – A Response (3) [Guest Post]

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