The tragedy that unfolded at the Sum Hospital is disturbing. Normally, one takes the precincts of a hospital as a reasonably safe place, but at least 19 were killed there out of asphyxiation. The mishap toll stands at 27 by now. Media is replete with headlines regarding the interrogations and progress of investigation. The arrested individuals have been quizzed. The wife of an arrested trustee is stated to be absconding. Certain other human aspects have, however, received scant attention. For example, the plight of the patients, who are still at the concerned hospital and the plight of the new patients who are reporting every day.
While it has become ritualistic to demand the arrest of the promoter or the chief executive or a trustee, etc., whenever a catastrophe occurs, the reasons that lead to such an event lie embedded in the system. So far as the Government is concerned, the concerned Minister has resigned for “moral” considerations. let’s assume that after a prolonged legal battle, some of the functionaries of the hospital may be penalised. Strangely enough, there has been no concern to conduct a registration audit so as to pinpoint what are the causative elements in the case of the hospital concerned; and how despite that, the institution received all clearances to carry on its activities as a “clinical establishment”. If one goes by the letters of the law governing the field, many deviations and deficiencies would be found in almost all the establishments. This shows a situation where pragmatism compels adjustments and deviations from the rigidities of what is prescribed. The Clinical Establishments Act has been subjected to amendment very recently. Prior to the amendments, the rigours of the Act lacked any sharp teeth. An analysis of the entire system has to be undertaken to identify the failures that led to the disaster. “Discretion” and implementation facilitation are parts of “regulation”. “Regulation” is not to “prohibit”. The institutions, if they have been continuing under the valid registration/certificates and other clearances, cannot be shut down overnight and to remain closed till compliance of the amended laws is fully made. It was an incumbent statutory duty on the part of the registering and certifying authorities to have a pragmatic work plan to ensure compliance with the requirements of the amended law. So far as the certifications under many Acts may have to be tested on the anvil of substantial compliance if all papers are in order and the authorities were kept intimated. From this analysis, one could generate the diagnosis of the nature of deviations / violations and their linkage with such an unfortunate disaster. law also requires a revisit in terms of evaluation of procedural requirements and the detailed ingredients of the protective conditionalities. All forms of regulatory requirements need not be intrusive or intensive. They can be in graded levels so as to serve the social object of ensuring substantial compliance and not causing any substantial violation of the statutory conditionalities.
This analysis would reveal the unsavoury part of the gamut of participatory methods of working between the statutory authorities and the institutions concerned. The manner in which the statutory authorities have conducted themselves has not been subjected to an adequately detailed analysis. Merely suspending some officers does not cure a systemic malady. It is alleged that there is no certificate or clearance procedure, which would stand the test of cent percent compliance of all the statutory requirements. If that be so, human conduct shall persuade running away from the rigidities of law. It is better to make the law more pragmatic and provide transitional arrangements so that the remediable is remedied. It may be an important task to do away with a regime “of subject to” or “on the following conditions”. The other extreme is to close down the facilities through a gradual process till they comply with all the requirements. The latter is not an appropriate strategy in the cases of running and operational clinical establishments like nursing homes or hospitals. A case-wise action plan could be imposed on the “registered” institutions and actions taken thereon should be as per a preordained time-schedule. A review of the implementation mechanism has to be undertaken afresh as the present one has not only failed but has also become ineffective. It must, therefore, be appreciated that arresting one owner or one trustee or one office-bearer or declaring someone as absconder diverts from a focussed study of the reasons that caused the catastrophe; and if any of the reasons are on account of the provisions of the law itself.
Ironically, Government hospitals would have much worse safety arrangements in any given geographical area. The corrective measure should not be overdone with a punitive intent. More important is the study to identify the systemic failures and or abuse of “discretions” or impracticality of implementation; and so on and so forth. There shall be serious dislocation of medical services in the capital if all the clinical establishments are noticed to be closed down. The manner of the projection of the news reports and response of the Government to this heart rendering tragedy make one believe that after some hype for some days, the human tragedy would gradually be forgotten. The critical minimum is a study of the registration system and from those micro studies macro conclusions could be drawn so that suitable remedial measures can be devised and implemented. Rigidities of the regulatory laws have to give way to some amount of purposive flexibility and a bit of meaningful free play at the joints. This realm of power is the ghost called of “discretion” very often exercised by the use of the expression “provisional”. This system-study should be undertaken in a comprehensive manner and the State authorities must mandate that all must cooperate so as to conclude the exercise within a feasibly short period.
On a more purposive note, a new set of laws can replace the present ones with innovative methods of ensuring compliance or facilitating rectification of any deviation through relevant built-in provisions so as to permit ironing out the creases without touching the main fabric. The focus of the youth, specially the professional ones amongst them, ought to be on san analytical and critical causative study of such an unfortunate event. As the Government is not likely to proceed in this manner (as no Government has hitherto also done), individuals through their collective initiative could undertake such a study, but it will be resisted by the institutions concerned. So, the punch and mask of the “Government” is a necessary input so as to make any study feasible, purposive and fruitful. “Inconvenience is an adventure wrongly considered and an adventure is an inconvenience rightly considered.”
law, as at present, is being subjected to violations every day in one “establishment” or the other. It is better to overhaul the law and have a pragmatic transparent structure (participatory in nature) so that the safety measures are in place without any further delay. As in any attempted change, the vested interests and the present beneficiaries shall carry on a campaign against any changes. The present law has its origin in the archives of “licence quota permit raj”. Such a study inevitably involves multi-disciplinal approach. This by itself calls for cautious action so as to have a cohesive action plan. Sufficient guidelines are available from the databank of hospitals at national and international levels. But we have to evolve the mandatory, partly regulatory and fully regulatory, measures by a critical study of the process of activities that would priortise the conditionalities that are to be observed by all concerned so as to serve the larger public purpose. let’s start acting in this direction through the participation of all the stakeholders. Surely, this concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)