Nepal: Seeking a rights-based approach to healthcare

An opinion piece by Mandira Sharma, ICJ Senior Legal Adviser, and Karuna Parajuli, ICJ National Legal Adviser, based in Nepal.

In mid-February this year, there were less than 100 new Covid-19 infection cases per day in Nepal. We now average around 9,000 cases per day. While the major political parties continue to flex their muscles for power, Covid-19 patients throughout the country scramble for hospital beds, healthcare workers and oxygen cylinders. Although the virus does not discriminate on the basis of class, the elite and the powerful have superior access to quality healthcare than the poor and the marginalised.

According to the Ministry of Health (MOH), there are only 1,171 intensive care unit beds and 483 ventilators in government hospitals throughout the country. These are not enough to prevent serious illnesses and deaths, considering the ever-increasing number of patients requiring hospitalisation. Covid-19 designated public hospitals are already overwhelmed by patients, and private hospitals seem to be taking undue advantage of the crisis. The price lists for hospitalisation publicised by some private hospitals recently indicate the degree of profiteering they indulge in even as they remain out of bounds for a significant number of patients.

The pandemic has impacted a host of human rights, the right to health being the most prominent one. Under both national and international laws, Nepal is obligated to respect, protect and fulfil the right to health through measures that are non-discriminatory including based on social and economic status. This legal obligation requires the government to take effective measures to ensure the prevention, treatment and control of Covid-19. This also includes the duty to regulate the conduct of the private healthcare sector, including hospitals, pharmaceutical companies and laboratories.

Considering the nature of this pandemic, extraordinary measures need to be put in place to gather resources held by both public and private healthcare actors. These obligations must be pursued not only through individual laws, policies and practices of the state but also through collective international cooperation.

The government must take immediate policy measures through coordinated interventions, also involving the private sector to ensure people’s right to health. It must also reassess the existing legal and policy framework, reinvigorate a coordinating body, and develop an integrated plan. Public health professionals and management experts with the necessary power and resources should be included in decision-making to respond to the pandemic. Although the government had formed a Covid-19 Crisis Management Center (CCMC) last year, the Cabinet later started to take most of the decisions on its own, forcing the CCMC to exist only on paper.

The Health Ministry and local authorities must work in tandem to make health services accessible to everyone by increasing hospital beds, oxygen supply, medicines and other necessary equipment. Government authorities, including the Health Ministry, should, following the Supreme Court’s orders, ensure free and widespread access to Covid-19 testing to prevent further infections.

Efforts to fix the public health system should include a longer-term plan and progressive allocation of resources to increase the number of healthcare facilities with the necessary infrastructure and improve the quality of services. A need for an integrated legal framework was already highlighted during the first wave of the pandemic. The Supreme Court in August 2020 ordered the government to adopt specific integrated legislation providing a framework for different government organs to function effectively to prevent and respond to the pandemic.

However, in defiance of the order, the government has instead opted to coordinate its Covid-19 response through the ineffectual and antiquated Infectious Disease Act of 1964, which takes no account of contemporary human rights laws or Nepal’s recently devolved federal structure. The Act, therefore, does not provide guidance as to how different levels of the government (federal, provincial, and local) are obligated to ensure the right to health and in particular the prevention, treatment and control of pandemics as required under the international law. It also fails to provide a framework to hold health service providers, both public and private, accountable for infringing on people’s right to health.

Although the Public Health Service Act (2018) has many gaps, it was enacted to ensure access to health services by making them ‘regular, effective, qualitative and easily available’. Section 4 of the Act requires every health institution, whether public or private, to provide emergency health services and to make necessary arrangements for the treatment of patients with infectious diseases. In interpreting Section 3(4) C of this Act, the Supreme Court has indicated that health services for infectious diseases such as Covid-19 fall under the category of basic health services and should therefore be provided for free. The use of a rights-based approach should be the point of departure, guiding all efforts the government takes in addressing the pandemic.

No one should die while failing to get access to health services, which in some situations may amount to a violation of the right to life triggering criminal responsibility on the part of the state officials involved. International law also requires international cooperation, with countries helping each other in implementing the obligations related to the right to health. Nepal should ask for increased international cooperation and action at the international level, like the TRIPS patent waiver and other resources.

In the longer run, the pandemic should be heeded as a wake-up call to revamp the public healthcare system in Nepal. Moreover, reforms are needed to shield healthcare facilities from political interference. As the increasing nexus between political actors and private companies hampers a quality healthcare system and proper checks and balances, an effective mechanism needs to be put in place not only to investigate any allegation of corruption in public health institutions but also to look at issues related to conflict of interest.

Finally, an integrated law must be adopted to regulate and facilitate the work of public and private health sectors both, and provide a framework for appropriate monitoring mechanisms to ensure a free and accessible primary healthcare system without economic, social or any other form of discrimination.

First published in The Kathmandu Post here.