Harshad J. Pabari vs State of Gujarat and Others

J.B. Pardiwala, J.—This Application under Art. 226 of the Constitution of India, in the nature of a Public Interest Litigation, has been filed by a resident of Jamnagar and who is also an Editor of a local weekly newspaper "Samay Ka Samna", bringing it to our notice that the respondent-authorities failed to maintain the confidentiality of the identity of a female patient who had come for treatment of H.I.V. positive/AIDS, at Guru Gobindsingh Government Hospital, Jamnagar, thereby leading to serious social repercussions. The case made out by the petitioner in this petition may be summed up thus:

According to the petitioner, the authorities at the Guru Gobindsingh Government Hospital, Jamnagar - respondent No. 3 herein labeled a twenty-five year old pregnant woman as "H.I.V. seropositive" with a sticker on her forehead and paraded her in the hospital in the presence of her six months'' old daughter and mother-in-law on 20th June, 2009.

The lady had got herself admitted in the hospital for treatment and was first attended and examined by one Dr. Nalini Anand, the Head of the Gynaecology Department, and one Dr. Dipti Joshi. Her medical examination revealed that she was in her two months'' pregnancy, and since she was H.I.V. positive, the doctors were of the view that it was advisable to abort the pregnancy. Accordingly, the woman accompanied by her daughter and mother-in-law visited the hospital for abortion. After her admission in the hospital, a nurse named Prafulla Ramani pasted a label on the forehead of the woman with H.I.V. positive written on it and was asked to stand separately away from the queue of other patients. A health activist named Nisha Jani of Jamnagar spotted the woman with such a label on her forehead and alerted her colleagues.

It is the case of the petitioner that the doctors and other staff members at the hospital humiliated the lady by sticking the label on her forehead and also by parading her in the hospital. The doctors even refused to treat the lady. According to the petitioner, the incident was reported in the newspaper "Indian Express" on 21st June, 2009. The hospital authorities constituted a committee of five members to probe into the incident, but within two days thereafter, on the instructions from the Additional Director, Gandhinagar, such committee was ordered to be dissolved, and therefore, the incident could not be investigated.

The petitioner thereafter sought certain information under the Right to Information Act, 2005 by filing an appropriate application dated 16th May, 2012. In reply to such application, the petitioner was informed that at the relevant point of time one Dr. Nalini Anand was in charge of the O.P.D. The petitioner also brought this incident to the notice of the Collector, Jamnagar by way of an application dated 20-9-2012, but no steps were taken even at the end of the Collector.

According to the petitioner, the incident which he has highlighted is not a solitary incident, but even thereafter, such action on the part of the hospital authorities have been reported.

According to the petitioner, it is the duty of the hospital authorities to maintain confidentiality of identity of patients who come for treatment for H.I.V./AIDS. Identity of such patients should not be disclosed so that other patients will also come forward for taking treatment.

In such circumstances referred to above, the petitioner has prayed for the following reliefs:

12.(A) Your Lordship be pleased to admit this petition.

(B) Your Lordship be pleased to issue writ of mandamus or any other appropriate writ, order or directions to respondent authority to take appropriate action against the responsible officer/staff for disclosing the identity of the patients suffering from H.I.V./AIDS, in the interest of justice.

(C) Your Lordship be pleased, pending admission and final hearing and final disposal of this petition, to direct the respondent authority to submit a report before this Hon''ble Court with regard to not maintaining confidentiality of the patients suffering from H.I.V./AIDS, in the interest of justice.

(D) Your Lordship be pleased to direct the respondent authority to maintain confidentiality of the patients suffering from H.I.V./AIDS, in the interest of justice.

(E) Your Lordship be pleased to direct the respondent authority to decide the representation of the petitioner dated 20-9-2012 (Annex-G) in the interest of justice.

(F) Your Lordship be pleased to grant such other and further relief(s) as deem fit in the interest of justice.

I. Stance of the State Government - Respondent No. 1:

On behalf of the State-respondent an affidavit-in-reply has been affirmed by the Under Secretary (Medical Education), Health and Family Welfare Department, Gandhinagar. According to the respondent No. 1, a female patient named "X" was admitted for treatment in the Guru Gobindsingh Government Hospital in Jamnagar after being detected through P.P.T.C.T. on Routine Pregnancy Screening to have Retro Viral Disease Positive (R.V.D. positive), which is commonly known as H.I.V. positive. Although, she was H.I.V. positive, she successfully delivered her second child in January, 2009 in the said hospital. The patient was registered with A.R.T. centre at the said hospital and was regularly visiting the hospital for follow-up treatment. On 17th June, 2009, the patient came at the hospital with a probable pregnancy and at that point of time she was advised for medical termination of pregnancy.

It has been conceded that the incident which has been highlighted by the petitioner in this petition did occur on 20th June, 2009 when the patient had come for her routine check-up. According to the State respondent, it was a very unfortunate incident and was the first of its kind reported in the said hospital.

According to the State respondents, the hospital has treated so far around more than 1,700 H.I.V. positive patients. Amongst those, about 90 cases of pregnancy have also been treated. Around 90 deliveries were successful, whereas in cases of 29 patients, M.P.T./T.L. was carried out successfully.

According to the State respondent, even after such unfortunate incident, the concerned patient did visit the hospital regularly. Her M.P.T. and T.L. were done successfully on 24th June, 2009. The patient has been taking regular treatment till this date with the A.R.T. centre.

It is also the case of the State respondent that the husband of the patient is also H.I.V. positive and is a registered patient with the A.R.T. centre of the hospital since 18th June, 2009. The husband is also regularly taking treatment at the said hospital.

According to the State respondent the incident was brought to the notice of the hospital authorities as well as the State authorities vide complaint dated 20th June, 2009 lodged by the President, Jamnagar District, Network of People Living with H.I.V./AIDS (J.N.D.P.), Jamnagar, with the Medical Superintendent of Guru Gobindsingh Hospital, Jamnagar.

On the strength of such complaint, the institution demanded for a prompt action against all those responsible officers working in the hospital.

On receipt of such complaint, the Medical Superintendent, Guru Gobindsingh Hospital, Jamnagar, had immediately directed Dr. Nalini Anand, the Head of the Gynaecology department, Dr. Dipti Joshi, a Medical Officer, and Smt. Prafulla Ramani, a Staff Nurse, who were on duty at the relevant point of time to proceed on leave until further orders. Thereafter, the Medical Officer and the Staff Nurse were ordered to be immediately transferred from Jamnagar by the Commissioner of Health vide order dated 20th June, 2009.

According to the State respondent, thereafter, a committee of five members was constituted by the Medical Superintendent of Guru Gobindsingh Hospital, Jamnagar, vide order dated 20th June, 2009 to enquire into the incident. However, the said committee was dissolved as the State Government, vide Health and Family Welfare Department''s Government Resolution dated 7th July, 2009, constituted a five-member High Level Committee to probe into the matter. The said committee gave its report on 30th October, 2009.

According to the State respondent, the High Level Committee came to the conclusion that there was no organized process of discrimination towards H.I.V. positives in the said hospital. On the contrary, the hospital has been providing good medical services compared to other private hospitals in the city who even refuse to admit the H.I.V. positive patient on one pretext or the other.

The Committee further came to the conclusion that the sticker was affixed on the forehead of the patient by one Dr. Dipti Joshi, a Medical Officer, along with a Student Nurse due to some misunderstanding on their part. The Committee also came to the conclusion that the Staff Nurse had no role to play directly or indirectly in the said episode. The committee also criticized the media in disclosing the identity of the lady.

According to the State respondent, all Government hospitals having A.R.T. centers are following the guidelines prescribed by the National AIDS Control Organization (N.A.C.O.) set up by the Government of India. At the State level, the Gujarat State AIDS Control Society (G.S.A.C.) has been formed and registered under the Society Registration Act, 1860. One of the main functions of the G.S.A.C. is to ensure that the guidelines prescribed by the N.A.C.O. are strictly followed by all the hospitals having A.R.T. centers.

Having heard the learned Counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration is, whether we should order further inquiry into the matter and direct the respondent authorities to take appropriate action against the erring officers responsible for the said incident.

Having regard to the stance of the State respondent, it is not in dispute that the incident which has been highlighted before us did occur at the Guru Gobindsingh Hospital, Jamnagar. The tape which was affixed on the forehead of the patient had the words "H.I.V. seropositive" written on it.

In our opinion, this is something which should never happen with any of the H.I.V. positive patients. It appears that the State respondents did promptly act in the matter by constituting a High Level Committee of five members who, in turn, probed into the incident and came to the conclusion that such an act of affixing a tape on the forehead was not with any oblique motive or with the intention to humiliate or insult a patient suffering from AIDS. It was an act committed due to some misunderstanding and the respondent-authorities have assured that it would never happen again. So far as the second part of the allegations is concerned that the patient was thereafter asked to walk through the different wards of the hospital before being taken to the hospital laboratory where she was asked to sit and wait, there is no definite finding arrived at or recorded by the committee.

It appears from the materials on record that the State authorities as well as the hospital authorities did act promptly and ordered transfer of the Medical Officers. At this stage, it may not be out of place to take note of the observations and recommendations of the five-member High Level Committee constituted by the State Government. They are as under:

The Hospital has been treating H.I.V. positive patients in the hospital in I.C.T.C. (V.C.T.C.)/P.P.T.C.T./Skin O.P.D./O. & G. department/T.B. department/I.D. hospital/Medicine department/A.R.T. centers. Details of the services provided by O. & G. department are given at C/69.

This particular patient too has been treated in the past in this hospital for various services and also after this event (C/71). The patient though could not be contacted but appears to be satisfied with services as she has visited at least 3 times after the event for M.T.P., T.L. and follow-up services.

Looking to the above point Nos. 1 and 2, we may say that there is no organized process of discrimination towards H.I.V. positives in this hospital. On the contrary, hospital is providing good services comparable to any other Government teaching hospitals (C/69) and better than most of private hospitals which refuse H.I.V. positive cases on one pretext or other.

The committee also took into the consideration the memorandum given by A.I.H.R.A. Jamnagar branch. We met Mr. Rakshit M. Sheth, its District Chief and a journalist by profession. During the discussion, it was found that this body has only one agenda that when 3 persons (according to them) were involved in the episode why 1 person (Dr. Anand) has been spared while other two have been punished. Our investigation conclusively establishes that the sticker was written by Dr. Dipti and pasted by a student nurse (on instruction of Dr. Dipti or by some confusion in understanding) and Dr. Anand was no whereat the scene. We feel that this organization has single point biased agenda to punish Dr. Anand. Further, in their memorandum they have questioned the integrity of Commissioner of Health, Gujarat State, as he belongs to the same community that of the father-in-law of Dr. Nalini Anand (point No. 5 at C/11). In this regard, we may mention that 3 persons were alleged to be involved in this event, namely, Dr. Anand (in-charge H.O.D.), Dr. Dipti (M.O., P.P. Unit) and Ms. Prafula Ramani (S.N.). In our entire investigation, we could not find any direct or indirect involvement of Ms. Prafula in this episode.

While discussing matter with representatives of J.D.N.P. + we got several contradictions in the statement of Ms. Preeti Chavda (President). Though, asked several times that on whose information she reached at the hospital, she changed her statement frequently. Twice she named Mr. Dadubhai, Secretary of J.D.N.P. + who is also working as Community Care Coordinator (C.C.C.) at A.R.T. centers and later she mentioned the name of Ms. Jyotsnaben who works as Counselor at Drop in Centre (D.I.C.). However, Ms. Jyotsnaben later gave a written statement to committee that she never informed her but it was Mr. Dadubhai. Nobody from the network accepts that they invited the media in the hospital.

Statement of patient Ms. ''X'' (name not disclosed) (written by someone else as she has put the thumb impression) (C/61) and that of J.D.N.P. + (C/65) categorically blames Dr. Anand alone for the episode. At the same time, Ms. Chavda, President of J.D.N.P. + has told the committee that she reached after the episode and arrival of media and has no first-hand knowledge that how this all happened. Despite the fact that she neither had any first-hand knowledge nor she witnessed the event, based on someone else statement (C/61) implicated Dr. Anand in putting up the sticker (which is actually untrue) and parading the patient in the hospital (C/65).

Committee members feel that the hospital and its various divisions have got more than 20 entry points. It was discussed with Medical Superintendent, G.G. Hospital that entry point must be reduced to minimum possible for security reasons as well as strict measures taken to prevent an unauthorized entry of media personnel in the hospital. All faculties in their statements have shared similar concern regarding security of the hospital.

Centralized blood collection in the O.P.D. for all departments is proposed by some faculty members at it will reduce the movement of patients from one place to other in the O.P.D. Superintendent may implement it as this will also reduce the pricks to a patient and ensure smooth working.

Media also played very irresponsible role. Till date, nobody owns the responsibility of calling the media. Another question is that who from the authorities gave them permission to enter in the hospital, shoot the video and talk with patient, attendants, hospital staff, etc. If the media persons are always roaming around in the hospital and come within minutes of an incident, it is even a more serious issue. Committee recommends that the media persons'' entry should be restricted to the minimum possible and through only prior approval by Medical Superintendent or R.M.O. of the hospital. We also propose that R.M.O. would accompany the media persons to safeguard the person and the institute.

Media has blown the incident out of proportion and has behaved irresponsibly by exposing the fact of the person which is a gross breach of the confidentiality which National AIDS Control Organization (N.A.C.O.) and G.S.A.C.S. have been fighting for. Instead of keeping confidentiality, media persons displayed the fact of the patient on channels across the country and world. So basic purpose of ensuring the confidentiality of H.I.V. positive is lost.

This publicizing the face of patient has a tactical approval and supposed involvement of an organization of H.I.V. positives (J.N.D.P. +). Committee feels that the role of J.D.N.P. + is dubious and why any one of their organization did not remove the sticker at first instance rather than going to call media persons (?) to give this event a worldwide publicity and also violating the human rights of a H.I.V. positive person (Network are supposed to be the custodian of their rights). Committee members have seen the footage in media where the members were giving interviews and asking for removal of certain staff members and making no effort to prevent the media from recording the fact of the patient. Moreover, G.S.N.P. + and its various D.L.N. are active partners with Government in H.I.V./AIDS control program. The State has been one of the well performing States in the country and is cited as model for many of its interventions. This adverse publicity has affected the progress and main streaming of the programme.

Finally, we have the statement from Ms. Jyotsnaben, Counselor at D.I.C. that she has been removed from the job apparently because of the statement she has given to this committee (C/73). The committee very strongly feels that if it has been done and that too out of vindictiveness. If it is true then it is a serious issue. Competent authorities should investigate this matter.

Even though, it is not in the T.O.R. of the committee, we feel that second year rotator posting of post-graduate students be kept at casualty or be clubbed with the Trauma Centre making it casualty division to reduce in convenience of patients particularly in medico-legal cases.

This institute should take the presence of media persons seriously. Media persons were not present in the hospital but they came immediately. So somebody informed them. Committee suggests that there should be minimum entry point and media persons be allowed only with permission from Medical Superintendent and Hospital representative should accompany media team to safeguard interest of patient and institute.

Committee has visited the I.D. ward and feels that H.I.V./AIDS patient must be admitted in general ward. This will help in reducing the stigma (if any) at provider level. Moreover, it is in accordance to the N.A.C.O. guidelines.

Committee feels that considering the past records of the institute for managing H.I.V. + ve patients (C/69), and that of the patient (C/71) the institute has not committed error intentionally, in the individual capacity or at institution capacity. This incident took place in the hospital and the gravity and unfortunate nature of the event cannot be undetermined but it happened due to miscommunication/misunderstanding on the part of Medical Officer and student nurse. M.O. has already been transferred from Jamnagar. Committee feels that Dr. Anand was in charge H.O.D. on that day and she was not involved directly and she in fact tendered apology to all concerned on behalf of the department. Committee found from the statement of the concerned person the sticker was pasted on forehead and written by medical officer and nursing student respectively. Nursing students simply obeyed the order and she cannot be blamed for that. The mistake was unintentional and this patient had in fact been treated in this hospital in spite of her H.I.V. status and incident which took place was probably due to miscommunication.

Role of Media and J.N.D.P. + in this event are to be looked into. Media tried to get mileage out of incident and did not protect the interest of patient. Media publicized the event probably to make the people aware about this event but while doing so they have breached the confidentiality of patient to a large number of people. In fact, after this publicity, she had to vacate the house. Committee proposes meetings and workshops for various media partners by concerned authorities to ensure sensitive handling of such matters.

We are of the opinion that as the incident is of the year 2009 and the State respondents have assured that in future such an incident would never occur and all steps shall be taken to see that the H.I.V. positive patients are treated well with dignity and respect, we are not inclined to order any further probe into the matter, more particularly, after going through the report of the High Level Committee and the steps taken by the hospital authorities as well as the State respondents.

We may only say that the incident which has been brought to our notice could be termed as very unfortunate and the hospital authorities henceforth shall strictly comply with the recommendations made by the High Level Committee.

We could have stopped at this stage saying no more but, taking into consideration the fact that this is a Public Interest Litigation and also having regard to the nature of the issue with which we are dealing with, we have thought fit to delve a little deep into the matter.

H.I.V./AIDS is a global pandemic that has created unprecedented challenges for physicians and health infrastructures. In addition to representing a staggering public health crisis, H.I.V./AIDS is also fundamentally a human rights issue. Many factors drive the spread of the disease, such as poverty, homelessness, illiteracy, prostitution, human trafficking, stigma, discrimination and gender-based inequality.

In our opinion, unfair discrimination against H.I.V./AIDS patients by doctors including the nursing staff of a hospital must be eliminated completely from the practice of medicine. All persons infected or affected by H.I.V./AIDS are entitled to adequate prevention, support, treatment and care with compassion and respect for human dignity. A doctor may not ethically refuse to treat a patient whose condition is within his or her current realm of competence, solely because the patient is seropositive. Doctors must be aware of the discriminatory attitudes towards H.I.V./AIDS that are prevalent in the society and local culture. Because the doctors are the first, and sometimes the only, people who are informed of their patients'' H.I.V. status, doctors should be able to counsel them about their basic social and legal rights and responsibilities or should refer them to the Counselors who specialize in the rights of persons living with H.I.V./AIDS.

Fear of stigma and discrimination, more particularly in a country like India where almost 30% of the population is illiterate, is a driving force behind the spread of H.I.V./AIDS. The social and economic repercussions of being identified as infected can be devastating and can include violence, rejection by family and community members, loss of housing and loss of employment, to name only a few.

In our opinion, normalizing the presence of H.I.V./AIDS in society through public education is the only way to reduce discriminatory attitudes and practices. Until that can be universally achieved, or a cure is developed, potentially infected individuals will refuse testing to avoid these consequences.

According to the Annual Administrative Report of the Gujarat State AIDS Control Society (G.S.A.C.S.) - Year: 2012-2013, 7,02,371 persons were tested and out of which 10,889 are found positive (1.55%). The situation is so pathetic that December 1st of every year is being observed as World AIDS day by World Health Organization, who educate the mankind all over the world about the incurable nature of the disease.

Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. By reason of numerous judgments of the Apex Court the horizons of Art. 21 of the Constitution have been expanded recognizing various rights of the citizens i.e. right to live in pollution free environment, right to water, right to health. Articles 38, 39(e) and (f) and 47 enshrined in Part IV of the Constitution of India read thus:

State to secure a social order for the promotion of Welfare of the People:

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas engaged in different vocations.

Certain principles of policy to be followed by the State: The State shall, in particular, direct its policy towards securing:

(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocation unsuited to their age or strength.

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Duty of the State to raise the level of nutrition and the standard of living and to improve public health: The State shall regard the raising of the level of nutrition and the standard of living of its people and improvement of public health as among its primary duties, and in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drink and of drugs which are injurious to health.

It is no gainsaying that though directive principles of State Policy in Part IV of the Constitution are not enforceable in a Court of law, they are nevertheless fundamental in the governance of the State. By reason of expansive interpretation of "life" in Art. 21 of the Constitution of India in various Supreme Court judgments, which is now the law of the land, right to life includes the right to all reasonable health facilities.

In Vincent Panikurlangara Vs. Union of India (UOI) and Others, , Ranganatha Mishra, J. dealing with legal obligations of the State to prohibit sale and use of banned drugs observed that:

......healthy body is the very foundation of all human activities and in a Welfare State it is the obligation of the State to enforce creation and sustenance of conditions of good health.

In Pt. Parmanand Katara Vs. Union of India (UOI) and Others, , the Apex Court again reiterating the same observed that Art. 21 of the Constitution casts an obligation on the State to preserve and protect life.

In State of Punjab and others Vs. Mohinder Singh Chawala, etc., , the Supreme Court held that right to healthy life is a fundamental right. The citizen''s right to healthy life and the State''s compelling constitutional obligation to protect other citizens from attacks of AIDS presents a situation where the right to privacy and public interest conflicts with each other.

The case of Mr. ''X'' v. Hospital ''Z'', AIR 1999 SC 495, decided by the Supreme Court deals with ''suspended right to marry''. In that case, a doctor''s marriage could not take place as he was tested H.I.V. + ve. He approached the National Consumer Disputes Redressal Commission for damages against the hospital, which revealed that he was infected with H.I.V. When the claim was rejected by the National Commission, he approached the Supreme Court, inter alia, contending that the right to marry is a fundamental right, and therefore, the hospital must be directed to pay compensation by way of damages. The Supreme Court held that right to marry cannot be claimed to be absolute and that a person suffering from H.I.V./AIDS cannot be said to have absolute right to marry though he deserves full sympathy and equal treatment in all walks of life. It is apposite to extract the following passage (at page 503 of AIR):

''AIDS'' is the product of indisciplined sexual impulse. This impulse, being the notorious human failing if not disciplined, can afflict and overtake anyone how high soever, or for that matter, how low he may be in the social strata. The patients suffering from the dreadful disease ''AIDS'' deserve full sympathy. They are entitled to all respects as human beings. Their society cannot, and should not be avoided, which otherwise, would have bad psychological impact upon them. They have to have their avocation. Government jobs or service cannot be denied to them as has been laid down in some American decisions. (See: School Board of Nassau Country, Florida v. Airline, 1987 (107) S.Ct. 1123; Chalk v. USDC CD of Cal, (9th Circuit 1988) 840 2F 2d 701; Shuttleworth v. Broward City, (S.D.A. Fla 1986) 639 F Supp 654; Raytheon v. Fair Employment and Housing Commission, Estate of Chadbourne, 1989 (261) Cal. Reporter 197). But, "Sex" with them or possibility thereof has to be avoided as otherwise they would infect and communicate the dreadful disease to others. The Court cannot assist that person to achieve that object.

(Emphasis supplied)

Having examined the matter in detail, we are inclined to make/issue the following suggestions/directions:

(1) Identity of patients who come for treatment of H.I.V. positive/AIDS should not be disclosed so that other patients will also come forward for taking treatment.

(2) There should be more awareness programmes undertaken by the Government especially in rural areas and slum areas so that people can take preventive measures.

(3) There should be proper schemes for rehabilitation of persons who are diagnosed as H.I.V. positive/AIDS patients.

(4) The media should be a little more careful in sensitive matters like the present one because sometimes in the exercise of its duty and over zealousness to see that the erring person is dealt with accordingly, the identity of such a patient in the process may also get disclosed like in the present case.

(5) The infected H.I.V. positive patients should be educated about AIDS so that he or she may not inadvertently or innocently be responsible in spreading the disease.

With the above, we close this Public Interest Litigation. The writ-petition is disposed of accordingly.