Health Law
Health Law
Health Law
The concept of health as a balance between a person and the environment, the unity of soul and
body, and the natural origin of disease, was the backbone of the perception of health in ancient
Greece. Similar concepts existed in ancient Indian and Chinese medicine. In the 5th century BC,
Pindar defined health as “harmonious functioning of the organs”, emphasizing the physical
dimension of health, the physical body and the overall functionality, accompanied by the feeling
of comfort and absence of pain. Even today, his definition bears importance as a prerequisite for
the overall health and wellness. Plato (429-347 BC) in his “Dialogues” pointed out that a perfect
human society could be achieved by harmonizing the interests of the individual and the
community, and that the ideal of ancient Greek philosophy “a healthy mind in a healthy body”
could be achieved if people established internal harmony and harmony with the physical and the
social environment. According to Aristotle’s teaching, man is a social being by his very nature;
he tends to live in communities with the duty to respect the moral standards and ethical rules.
Aristotle emphasized the necessity for regulating the relations in the society to achieve
harmonious functioning and preservation of health of its members. Democritus connected health
with behavior, wandering why people prayed to God for health, which was essentially under
their own control. Hippocrates explained health in connection with the environmental factors and
lifestyle. Hippocrates was the creator of the concept of “positive health”, which depended on the
primary human constitution (we consider it today as genetics), diet, and exercise. He thought that
proper diet and exercise were essential for health, and that seasons’ changes had a profound
effect on the mind and body, resulting in different types of predominant diseases during the
winter (respiratory tract diseases) and summer (digestive tract diseases) ( A lot might be said
about the long standing philosophical discussion about body and soul, and in present society
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between body and mind, as an active dichotomy (Plato and Hellenism) or as an integrated unity
(usually reference to Aristotle), which is important to know about in the current online
environment.
In the Middle Ages, health perception was strongly influenced by religion and the church. After
Roman Empire fell apart, the church was left as an only important infrastructure providing care
for the people and collecting the knowledge on remedies, e.g, herbs grown in monastery gardens.
The “forgotten” knowledge of antiquity was re-discovered during the Renaissance and re-framed
up to the present. During the period of Industrial Revolution, health became an economic
category, which was to allow good condition and working ability and reduce lost work days due
to illness. Accordingly, the value of health was such as enabling economic profit. The health was
intertwined with Darwinian understandings of strength and being the fittest, where meaning of
life was tied to physical survival. Another health aspect considered the ability of the individual to
adapt to the influences from the environment to the extent that the individual could tolerate and
resist. When the adjustment is over, the disease occurs as a natural consequence. This approach
first reflected only biological mechanisms of adaptation, later adding on influences from the
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MODERN CONCEPT OF HEALTH
All modern concepts of health recognize health as more than the absence of disease, implying a
maximum capacity of the individual for self-realization and self-fulfillment. This should
equilibrate the human inner forces and possibilities with the feeling of pleasure or dissatisfaction
in their relations with the environment. Social medicine and public health approach to health
advocate that we should not only observe the health of the individuals, but also the health of the
groups and the community, as a result of the interaction of the individuals with the social
environment.
The holistic concept of health is contained in the expression of wholeness. Health is a relative
state in which one is able to function well physically, mentally, socially, and spiritually to
express the full range of one’s unique potentialities within the environment in which one lives.
Both health and illness are dynamic processes and each person is located on a graduated scale or
continuous spectrum (continuum) ranging from wellness and optimal functioning in every aspect
The modern theories take a different view of what creates health and what factors support health,
as opposed to the conventional approach of pathogenesis to study the factors that cause disease.
To find the “origins of health”, one needs to search for factors that support the human health and
welfare.
To establish social welfare and to facilitate, encourage, and secure individual autonomy and
dignity are key challenges in the present time and society. The modern understanding of health
became official when the World Health Organization (WHO), at the time of its establishment in
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1948, included the definition of health in its Constitution. This generally accepted definition
states that “health is a state of complete physical, mental, and social well-being and not merely
the absence of disease or infirmity”. This definition promoted for the first time that, in addition
to physical and mental health, social welfare is an integral component of the overall health,
because health is closely linked to the social environment and living and working conditions.
Within the last few decades, the WHO definition of health has been increasingly amended and
supplemented by the fourth dimension – spiritual health. Generally speaking, spiritual health
involves a sense of fulfillment and satisfaction with our own lives, system of values, self-
confidence and self-esteem, self-awareness and presence, peacefulness and tranquility with
dynamic emotional balance, both internal and toward the environment, morality and truthfulness,
selflessness, positive emotions, compassion and willingness to help and support others,
responsibility and contribution to the common good, and successful management of everyday
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RIGHT TO HEALTH AND HUMAN RIGHTS
With both the UDHR and WHO coming into existence, there was great promise that these two
institutions would complement each other, with WHO like all UN specialized agencies serving to
support human rights in its policies and programs. Yet in spite of this promise and early WHO
support for advancing a human rights basis for its work, the WHO Secretariat intentionally
neglected human rights discourse during crucial years in the development and implementation of
health-related rights, projecting itself as a technical organization above ‘legal rights’ and
health.
The reach of public health law is as broad as public health itself and both have expanded to meet
the needs of society. The scope of the right to health and its correlation with the right to
healthcare was first outlined in the Universal Declaration of Human Rights in 1948, wherein
while the right to health was conceived as an individual’s civil right, states were bound to
provide minimum conditions to enable individuals to enjoy this right and provide primary health
services in an equal and fair manner. It is important to note that while the right to health is
considered an inherent human right, the right to healthcare is its progressive realization through
declared constitutional and legal rights, in particular, through public health law.
As states worked through the UN Commission on Human Rights to develop human rights treaty
law, WHO was set to play a defining role in translating the aspirational public health language of
the 1948 UDHR into the binding legal obligations of the 1966 International Covenant on
Economic, Social and Cultural Rights (ICESCR). Although WHO served this vital human rights
leadership role in the first five years of its existence, the political constraints of the Cold War led
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WHO to reposition itself in international health as a purely technical organization, focusing on
Where WHO neglected human rights development, it did so to the detriment of public health.
When WHO sought to reclaim the language of human rights in the 1970s in the pursuit of its
‘Health for All’ strategy, its past neglect of human rights norms left it without the legal
Alma-Ata.
WHO’s early years were marked by the Secretariat’s active role in drafting human rights treaty
law and its cooperative work with other UN agencies to expand human rights frameworks for
public health. Working with state representatives in the early 1950s, WHO Director-General
Brock Chisholm welcomed ‘opportunities to co-operate with the [UN] Commission on Human
ensuring the enjoyment of the right to health,’ recognizing that ‘the whole programme approved
by the World Health Assembly represents a concerted effort on the part of the Member States to
In pressing the Commission on Human Rights in its development of health obligations, the WHO
Secretariat successfully suggested in 1951 that the right to health reflects state commitments in
the WHO Constitution, emphasizing (1) a positive definition of health promotion, (2) the
responsibility for health provision, and (4) the role of health ministries in creating systems for the
public’s health.
While these WHO proposals survived early objections from the Cold War Superpowers, with
vigorous debates among state representatives in both the WHO Executive Board and the UN
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Commission on Human Rights on the expansiveness of such public health commitments, WHO’s
influential contributions to the development of human rights for public health were explicitly
rejected following a 1953 shift in WHO’s Secretariat leadership and reform of WHO’s health
priorities.
In addressing determinants of health through ‘primary healthcare,’ the WHO Secretariat would
adopt human rights discourse to advocate for the national and international redistributions that
reasserted the WHO Constitution’s proclamation that health ‘is a fundamental human right,’
creating a rights-based vision for what many at the time considered ‘the onset of the health
revolution.’
However, despite presenting a nominally rights-based framework for advancing public health,
WHO’s previous neglect of human rights law would prove fatal to the goals of the Health for All
Strategy. Without UN treaty frameworks to guide primary health care, the Declaration of Alma-
Ata presented no obligations on states, with scholars noting in its aftermath that ‘inadequate
national commitment to the ‘Health for All’ strategy is at some level a reflection of the
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PUBLIC HEALTH
Public health is defined as the science of protecting the safety and improving the health of
communities through education, policy making and research for disease and injury prevention.
The new public health is compressive in scope. It relates to or encompasses all community and
individual activities directed towards reducing factors that contribute to the burden of disease
and foster those that relate directly to improved health. Its programs range from Immunization,
health promotion, and childcare to food labeling and food fortification to the assurance of well
managed, accessible health care service. The planning, management, and monitoring functions of
a health system are indispensable in a world of limited resources and high expectations. This
requires a well developed health information system to provide the feedback and control data
responsibilities of the individual for his/her own health, and of the provider of care for human,
high quality professional care. It is concerned with the health of the whole population and the
prevention of disease from which it suffers. It is also one of the efforts organized by society to
protect, promote, and restore the peoples’ health. It is the combination of sciences, skills and
beliefs that is directed to the maintenance and improvement of the health of all the people
The area of health policy and practice is large and rather complex. For ensuring equitable,
efficient and effective health care services, it is essential for a public health professional to have
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a sound knowledge of all the topics pertaining to the area of health economics. One of the
learning objectives of Community Medicine is that a public health professional should acquire
the ability to perform as an effective leader of health team at primary level (1). The landscape of
health problems in India have undergone a rapid transition bringing in its wake a set of
deficiencies and poor maternal health. This calls for a concerted public health response which
would include cost effective strategies for health promotion, disease control and provision of
health care (2). It is a well known fact that investment in the field of health contributes to
the economic growth of a country and prevents economic loss caused by diseases and
premature death. In a developing country like India where the resources are scarce, health
economics could serve as an important tool to bring about an optimum use of resources to
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PUBLIC HEALTHCARE SYSTEM IN INDIA
India’s health care system consists of different types of providers who practice in different
systems of medicine and use various forms of organization in delivering health care services.
The system is so complex that it includes sub systems each contributing their share in providing
health care services in the country. Each subsystem is different from the others in terms of the
health needs and demand perceptions about quality and utilization reach capabilities innovative
The services provided by each component are different, yet interdependent and overlapping in
nature. This makes it difficult to define precisely the boundaries of a particular segment of the
health care system. However by using the ownership criterion, the health care system can be
divided into four broad categories. First the public sector which includes government run
hospitals, dispensaries clinics primary health care centres and sub centres and paramedics.
Second the not for profit sector which includes voluntary health programs, charitable institutions
missions churches and trusts. Third the organised private sector which includes general
practitioners private hospitals and dispensaries registered medical practitioners and other
licentiates. Fourth the private informal sector which consists of practitioners not having any
formal qualification faith healers, tantriks herbalists, priests, hakims and vaids.
This healthcare system will become effective, efficient, optimal, accessible and equitable if the
state fulfils all the core obligations that are imposed upon it by right to health. The State as a
regulator, protector and promoter of our health assesses our health care needs, ensures access to
health care service, organizes and regulates the medical and allied professions, regulates medical
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institutions, ensures availability, affordability and quality of drugs, maintains efficacy and
effectiveness of healthcare, reviews the causes of ill health, prescribes regulations for protection
of health of the population and reduces the health risks posed by diseases. When these roles are
reviewed through the touchstone of right to health it tries to incorporate into the role of the State
The framers of the Indian Constitution recognized the mandate on the part of the state to improve
the health. But rather than treating health as a fundamental right they treated it as a directive
principle. The obligation of the State to ensure the creation and the sustaining of conditions
congenial to good health is cast by the constitutional directives contained in Articles 39, 42 and
47. As per these directives the State has to direct its policy towards securing that 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 avocations unsuited to their age or strength
and that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom of dignity and that childhood and youth are protected against exploitation
The State is also required to make provision for just and human conditions of work and for
maternity benefit. Again it becomes the primary duty of the State to endeavor the raising of the
level of nutrition and standard of living of its people and improvement of public health and to
bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks
and of drugs which are injurious to health Protection and improvement of environment is also
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The State legislature is also empowered to make laws with respect to public health and
sanitation, hospitals and dispensaries. Both the Centre and the States have power to legislate in
the matters of social security and social insurance, medical professions and prevention of the
extension from one state to another of infections of contagious diseases or pests affecting man,
animals and plants. The Directive Principles of State Policy represent the minimum national
consensus on the basic socio-economic objectives at the time of framing the Constitution. These
directives are fundamental in the governance of the country. They can be stated as the rock
bottom level of the socio –economic development that the state is obliged to secure and maintain.
However Directive Principles of State Policy are non-justiciable and their status is only that of a
directive to the government. This has caused to undermine the philosophy behind the inclusion
of Directive Principles in the State Policy. So it is often argued that if Directive Principles of
State Policy were absent in the Constitution it would not have made any difference because
economic justice and public welfare could have been realized through fundamental rights read
But at the same time it must be admitted that a close reading of the Directive Principles enjoins
health services and proper nutrition to all the people of India. In tune with these a plethora of
welfare legislations have been enacted by the state. These statutes do not come in a single neat
legislative package marked Health Law. It consists of many different types of legislation, which
have little in common except the benign purpose of advancing public health.
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THE JUDICIAL TREND
It was emphasized in Paramand Katara v. Union of India.[31] that it is the duty of the doctors
to take all possible measures to preserve life and observed that preservation of human life is of
paramount importance. The Apex court held that whether the patient be innocent person or
liable to punishment under the law, it is the obligation of those who are in charge of the health of
the community to preserve life,[33] so that innocent may be protected and guilty may be
punished. It was also held that this obligation is total, absolute and paramount, and laws of
procedure, whether in statutes or otherwise, which would interfere with the discharge of this
The Supreme Court, while interpreting Article 21 of the Constitution ruled that the expression
‘life’ does not connote mere animal existence or continued drudgery through life but includes,
inter alia, the opportunities to eliminate sickness and physical disability. In Francis Coralie
Mullin v. Union Territory of Delhi, it was held that, right to life guaranteed in Article 21 of the
Constitution in its true meaning includes the basic right to food, clothing and shelter.
The Apex Court, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, while
widening the scope of Article 21 and the government’s responsibility to provide medical aid to
every person in the country, held that in a welfare state, the primary duty of the government is to
secure the welfare of the people. Providing adequate medical facilities for the people is an
obligation undertaken by the government in a welfare state. The government discharges this
obligation by providing medical care to the persons seeking to avail of those facilities.
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In Unnikrishnan, J.P. v. State of Andhra Pradesh, it was held that the maintenance and
improvement of public health is the duty of the State to fulfill its constitutional obligations cast
In Consumer Education and Research Centre v. Union of India, the Supreme Court explicitly
held that the right to health and medical care is a fundamental right under Article 21 of the
Constitution and this right to health and medical care, to protect health and vigor are some of the
In Bandhua Mukti Morcha v. Union of India the Apex Court addressed the types of conditions
necessary for enjoyment of health and said that right to live with human dignity also involves
right to ‘protection of health’. No State, neither the central government nor any state
government, has the right to take any action which will deprive a person the enjoyment of this
basic essential.
In Virender Gaur v. State of Haryana, the Supreme Court held that environmental, ecological, air
and water pollution, etc., should be regarded as amounting to violation of right to health
In Vincent v. Union of India, it was held that a healthy body is the very foundation for all human
activities. In a welfare state, therefore, it is the obligation of the state to ensure the creation and
The Apex Court, in its landmark judgment in Parmanand Katara v. Union of India, ruled that
every doctor whether at a government hospital or otherwise has the professional obligation to
extend his service with due expertise for protecting life, whether the patient be an innocent
person or be a criminal liable to punishment under the law. No law or state action can intervene
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to avoid/delay, the discharge of the paramount obligation cast upon members of the medical
profession.
In CESC Ltd. v. Subash Chandra Bose, the Supreme Court relied on international instruments
and concluded that right to health is a fundamental right. It went further and observed
that health is not merely absence of sickness: “The term health implies more than an absence of
sickness. Medical care and health facilities not only protect of health and medical care generate
devotion and dedication to give the workers’ best, physically as well as mentally, in productivity.
It enables the worker to enjoy the fruit of his labour, to keep him physically fit and mentally alert
for leading a successful economic, social and cultural life. The medical facilities are, therefore,
part of social security and like gilt edged security, it would yield immediate return in the
increased production or at any rate reduce absenteeism on grounds of sickness, etc. Health is thus
a state of complete physical, mental and social well-being and not merely the absence of disease
or infirmity.”
In Mahendra Pratap Singh v. State of Orissa, the Court had held “in a country like ours, it may
not be possible to have sophisticated hospitals but definitely villagers within their limitations can
aspire to have a Primary Health Centre. The government is required to assist people, get
treatment and lead a healthy life. Thereby, there is an implication that the enforcing of the right
to life is a duty of the state and that this duty covers the providing of right to primary health
care.” For Protection of health of workers and humane conditions of work the Supreme Court
in Occupational Health and Safety Association v. Union of India and others, held that when
workers are engaged in hazardous and risky jobs/ occupations, the responsibility and duty on the
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ADVANTAGES OF PUBLIC HEALTH APPROACH
The primary advantage of viewing health care system from a right to health perspective is that
that it establishes that all human beings have an equal right to health and compels the State to
devise measures to ensure the right. This means it is essential to specify adequate minimum
standards of health care facilities, which should be made available to all people irrespective of
their social, geographic and financial position. Secondly it insists upon the State to safeguard and
implement the core content of right to health. This implies that just as the State/Government are
responsible for the suffering caused by arbitrary detention, they are equally responsible for the
far more pervasive suffering caused by arbitrary cuts on health and welfare spending or framing
discriminatory or negligent policies depriving a wide section of the population access to basic
Thirdly it guarantees a proper health care system. The State will have to guarantee life saving
care to all at a reasonable cost. In the long run this will help to build up a quality health care
system accessible and affordable for all. Fourthly the State will have to ensure essential drugs at
affordable cost. This has two implications. Primarily the State has to ensure availability of all
basic medications free of cost through the public health system. Secondly, that the State should
ensure the products and availability of an entire range of essential drugs at affordable price.
Fifthly it assures that the rights of patients are not violated. That means the entire range of
treatment and diagnosis related information should be made available to every patient in either
public or private facility. Every patient should be entitled to information regarding staff
qualifications, fees and facilitates of any medical center before they decide to take the treatment.
Confidentiality, consent and protection of dignity of a patient should be ensured to every patient.
Patient friendly grievance redressal mechanism needs to be made functional, with technical
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guidance and legal support being made available to all those who approach this system. This
would provide an effective check on various forms of malpractices. The State therefore has to
guarantee right to access to health care at least at basic or emergency levels, right to considerable
Sixthly the approach also implies establishing rights and regulations related to private medical
sector. It signifies that everyone has access to emergency medical care and care based on
minimum standards from private medical service. That means in situations of emergency
medical care no hospital or doctor, including those in the private sector can refuse minimum
essential first aid and medical care, irrespective of the person’s ability to pay for it.
It also implies that State should make provisions to regulate qualifications of doctors, required
infrastructure, investigation and treatment procedures especially in the private medical sector.
Standard guidelines for investigations, therapy and surgical decision-making need to be adopted
and followed combined with legal restrictions on common medical malpractices. Maintaining
complete patient records, notification of specific diseases and observing a ceiling on fees also
need to be observed by the private medical sector. It also necessitates the designing of adequate
criteria for a better distribution of health care human resources and regulation of infrastructure
and medical technology. Approaching health issues through a right to health perspective adds an
important dimension to our health status. This is because it links health status to issues of
dignity, justice, equality, non-discrimination and participation. At the same time it also exposes
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CHALLENGES TO HEALTHCARE SECTOR IN INDIA
Demographics
India, today, faces the so-called “dual disease burden” as the share of non-communicable
diseases (NCDs), better known as “lifestyle” disease, increases over the years along with a
continuing rise in communicable diseases (FirstPost, 2018). With the growing middle-class and
working-age population, there is increased incidence of lifestyle diseases like diabetes and
cardiac ailments. The NCDs accounted for more than 50 percent of all deaths in 2015, up from
42 percent in 2001-2003 (Upadhyay, 2012). Another staggering fact about the occurrence of
NCDs in India is that while in most western countries NCDs are likely to occur in old age, the
peak occurrence in India is a decade earlier, majorly affecting the age group of 30-59 years
(Maya, 2017). This nature of the problem has socioeconomic consequences as it directly affects
the working-age population and, hence, calls for stronger secondary and tertiary healthcare
system.
The contributions of public and private sectors in the Indian healthcare system also show a
worrisome picture. As per the National Sample Survey Office (NSSO), between January and
June 2014, 243 people out of 1,000 sought medical treatment within the public healthcare
system, whereas 756 people out of 1,000 opted to visit a private doctor or private hospital
(Lakshman, 2016). Astonishingly, the public sector accounts for only about 20 percent of the
total healthcare expenditure with 80 percent contribution coming from the private sector which
is one of the highest in the world. Equally astonishing is the fact that between 1995 and 2014
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India’s public expenditure on healthcare rose only from 1.1 percent of GDP to 1.4 percent. This,
when compared to other BRICS countries (Brazil: 3.8 percent, China: 3.1 percent, Russia: 3.7
percent, South Africa: 4.2 percent), shows how under-funded and small in size the public
Health Infrastructure
Infrastructure is another pain point in the Indian healthcare sector. The country faces severe
resource shortage on both capital invested and manpower. India faces an acute shortage of
hospital beds with a ratio 0.5 per 1000 population for India as compared to 2.3 for China, 2.6 for
Brazil and 3.2 for the US (Sinha, 2011). Huge regional variations exist with some of the more
prosperous states with excess capacity while others with a huge shortage. This ratio is much
lower than the requirement of 1 bed per 1000 population as defined for the low-income countries
by WHO. Providing for quality healthcare services is highly capital intensive where the cost of
building a secondary care and a tertiary care hospital could be as high as 25 lakhs and 40 lakhs
per installed bed, respectively. This means that in order to meet the WHO standards of 1 bed per
Healthcare sector requires highly skilled human resources from doctors to other medical support
staff like nurses, lab technicians, pharmacists, etc. The physicians ratio in India stands at 0.7 per
1000 population while this ratio for countries like China and OECD is at 1.9 and 3.2,
urban areas where consumers have higher paying power, leaving rural areas underserved.
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According to a KPMG report, although India meets the global average in terms of the number of
physicians, 74 percent of its doctors cater to a third of urban population, or no more than 442
health centres. The 25,308 primary health centres (PHCs) spread across India’s rural areas are
short of more than 3,000 doctors, with shortage up by 200 percent over the last 10 years (Salve,
2016).
Health Insurance
India’s health insurance model excludes a large part of the population with over three quarters of
the population having no health insurance. 24 percent of the population that has some kind of
medical insurance includes both private and public sector insurance and the central scheme for
weaker sections, the Rashtriya Swasthya Bima Yojana. Government contribution to insurance
stands at roughly 32 percent, as opposed to 83.5 percent in the UK. India primarily relies on
commercial health insurance now. Even as a copy of the U.S. model, commercial health
insurance in India is seriously deficient. It almost entirely covers only catastrophic expenditure,
such as the cost of highly restricted hospital treatments, which are offered without cost and
quality regulation and external audits. Outpatient treatment and prescription medicines are not
covered.
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CONCLUSION
The healthcare sector in India is poised at a crossroads where the right policy action is extremely
critical in determining the future course of the sector. The industry faces major challenges owing
to the changing demographics of the country, the poor state of the public infrastructure, lack of
financial resources, paucity of human capital and poor governance. The staggeringly low
contribution of the public sector in the healthcare industry sits at the centre of all these problems.
While the National Health Policy tries to address the majority of these challenges, it lacks
Although the government realises the need to increase public spending in healthcare, it would be
important to ensure that the spending is done in the right manner. Countries like Sri Lanka and
Bangladesh which have much lower spending on healthcare when compared to India actually
perform much better on several health indicators. This shows the importance of not just
increasing the spending but also spending it more effectively. All said and done, it may not be
very accurate to directly compare the Indian situation with any of the other countries in the world
given its huge population, unique demographics and democratic governance. We need our own
solutions to our own problems which are best suited to our population and our systems.
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BIBLIOGRAPHY
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