The COVID-19 pandemic is taking a huge toll on the healthcare sector across the globe. The situation is seemingly more unfortunate in a developing country like Bangladesh. The challenges permeating the healthcare sector are innumerable and the same are accounted for by many things – ranging from loopholes in the legal framework to raw realities in the field. Allegations of denial of treatment (of COVID and non-COVID patients alike), sale of counterfeit pharmaceutical and non-pharmaceutical products and services of utmost need for COVID patients, irregularities in the private healthcare sector, are some of the challenges among many others. There are shortcomings in establishing an accountability mechanism in instances of medical negligence and malpractice as well. All these lacunae are making it difficult to ensure a rights-based approach to healthcare services amid the current coronavirus crisis.
In this backdrop, a webinar on 'Rights of Consumers relating to Health Care Services' was organised by 'Law & Our Rights', The Daily Star on 30 June 2020. In the webinar, experts and stakeholders expressed their views on possibilities, challenges and opportunities of consumer rights-based approach to healthcare services within the current legal framework of Bangladesh. Mohammad Golam Sarwar, from Law Desk and also a Lecturer in Law, University of Dhaka moderated the webinar.
Prof. Dr. Md. Ziaul Islam, Head, Department of Community Medicine, National Institute of Preventive and Social Medicine (NIPSOM)
The current pandemic has gone beyond the capacities of developed and developing countries. For Bangladesh in particular, we do not have sufficient resources to provide healthcare to the large number of patients, and as a result, on preventive, promotive or curative levels we face limitations. However, we should work within this capacity and properly utilise our logistical and infrastructural resources. The government is trying to provide necessary resources, but some shortcomings are still noticeable. There should have been a holistic preparedness.
Another important area that needs our focus is of creating a balance between medical malpractice and violence against doctors. Consumers seeking healthcare are fundamentally different from consumers seeking other services. There are psychological impacts associated with the loss of near and dear ones which may result in tension and violence. A comprehensive protection legislation incorporating the rights of both the doctors and the patients should be enacted. With regard to complaints against doctors, alongside legal routs, the possibility of administrative measures, can be considered. The Consumers Rights Protection Act 2009 is also not adequate to protect rights of the patients. Even there is no representative from health service sector in the National Consumer Rights Protection Council under the Act.
In the age of globalisation, health market is booming. But due to its unique nature, the rights of the consumers are not delineated. Costs differ widely – consumers have little to no idea about the reasonable price of these services. In other markets, consumer and seller are more on par with regard to their knowledge on the costs of goods and services. A collaborative framework involving public health experts, civil societies and government agencies should be ensured.
Prof. Dr. Mohammad Morshed, Director, Holy Family Red Crescent Medical College Hospital
It is now quite evident that a good percentage of COVID-19 patients are dying at home. Even among the ones who are going to the hospitals there have been allegations of denial of treatment. We are not blaming the patients, but the fact is that they should act responsibly also. We often see that they themselves fail to identify between mild and severe symptoms and unnecessarily over-crowd the hospitals – whereas they could have taken some minor treatment-measures at home instead of coming to the hospitals. There is a lack of coordination, information and understanding as to at what moment the patients should take resort to hospital services. Sometimes asymptomatic patients come to the hospital and insist upon getting admitted. They even do not want to understand that they create pressure on the healthcare system and the medical personnel.
The pandemic has shown us that management is an important aspect of the health sectors. A proper coordination between healthcare professionals and the management team is crucial. Often doctors face the wrath of public for managerial decisions. Another important consideration is transparency and accuracy of information that the consumers receive. Also, there remains general crisis of transparency and accountability, in dealings with logistics, equipment, protective clothing, etc. There is lack of management in the private sector mostly and they need to be brought under proper management and into a proper system of regulation.
Barrister Rashna Imam, Advocate, Supreme Court of Bangladesh
Various provisions of the Consumers Rights Protection Act 2009 contain penal sanction to protect rights of the consumers. For instance, section 52 provides penalty for doing any act detrimental to life or security of consumers. Section 53 punishes the act of negligence resulting in loss of life or damage to health. Apart from this, section 45 provides punishment for selling or delivering substandard services. Under these provisions, criminal cases can be lodged. However, the consumer in question on his/her own cannot lodge the case. The condition is of complaining to the Director General within thirty days. This is the first inadequacy or loophole in the law. Under the law, civil claims can also be made for compensation up to five times the loss suffered. However, there is no standard guideline to calculate the quantum of compensation.
Administrative actions can be taken by the Director General when he gets a written complaint. As part of administrative actions, licenses of the service providers may be revoked, and their commercial activities may be closed down. However, the law does not flesh out the detailed procedure of administrative actions or measures that may be taken. This is yet another loophole.
Another issue is of protection of the frontline doctors and medical personnel. Although we do not have any specific legislation for the protection of doctors, they are protected under the constitutional safeguards of right to life and health. For example, not providing protective gears to doctors and sending them to the frontline is like trading one life for another and that is in no way constitutional. Regarding the public sentiment resulting in violence towards doctors, mob justice prevails when there is absence of accountability and when people lose faith in the processes.
Another legal issue comes up with regard to the testing of COVID-19 disease. Earlier, the testing was done under the auspices of the government and was free. Private testing had a price. Recently, the decision has been made on buying government testing services too with a price. Interpreting the constitution and existing laws would indicate that testing should be free and accessible for all.
In order to address medical malpractice or negligence, we must have a comprehensive law of tort and compensation. Private tort of negligence has not developed in Bangladesh because the civil suits take many years to be resolved, among others. This adds to other procedural matters such as court fees and fees for advocates discourage people from coming forward. Another challenge is the matter of evidence. No laws provide for a record-keeping obligation on the hospitals. Without the records, the court cannot properly scrutinise the case. Often, in cases that involve powerful parties like owners of big hospitals, there is also a concern of witness intimidation. Since we do not have any witness protection scheme, this may lead the party to withdraw the suit. However, public tort law has developed to a certain extent. Some cases are instances of res ipsa loquitur where evidence is not as big of a challenge.
Ghulam Rahman, President, Consumers Association of Bangladesh (CAB)
During this pandemic, due to alleged mismanagement and corruption in health sector, there is a huge crisis. Many things are wrong not just with the hospitals but also with equipment and medicine as we can see in the news every day. We need a stringent legal framework and responsible as well as dedicated leadership to ensure a proper healthcare system.
The Consumers Rights Protection Directorate has not filed a single criminal case until now. They have kept their measures limited to administrative fines. Not many complaints regarding the healthcare sector has been raised either – mostly the complaints deal with expired medicine or similar and minor offences. The law should be amended to ensure the aggrieved persons can directly approach the court.
Right to healthcare is one of the recognised rights in the country. Hence, discrepancies in consultation fees and cost of diagnostic tests should be centrally regulated. The government needs to undertake an overseeing role and corruption needs to be properly addressed. Otherwise, despite increasing the budget for the healthcare sector, nothing will change.
From Law Desk.