COVID-19 and the Capping of the Chargeable Fee by Private Hospitals: Juxtaposing Liberal and Communitarian Perspectives

Introduction

With the COVID situation increasingly falling outside the grasp of the Delhi government, on June 19, 2020, a panel set-up by the Union Home Ministry, led by NITI Aayog Member Dr. V.K. Paul, recommended a cap on the charges for COVID treatment in private hospitals. The upper limits are as follows: Rs. 8,000-10,000 per day for an isolation bed, Rs. 13,000-15,000 for ICU without ventilator support, and Rs. 15,000-18,000 for an ICU with a ventilator. The move came in swiftly in light of the extortionate charges levied by private hospitals (even going to Rs. 1 lakh per day) thereby making treatment for ordinary citizens a herculean task. The present analysis seeks to examine the above recommendation by juxtaposing communitarian and liberal perspectives while concluding that a communitarian understanding is the need of the hour.

Liberal conception & free-market economy

Libertarianism places the individual and his rights at the centre while prioritizing individual liberties over all other goods. Liberal conception recognizes an individual as a separate entity from the society, who has a set of basic rights that must be protected at all costs. Protection of individual rights is of paramount importance under the liberal conception, rather than the achievement of the greater good of the community.

Robert Nozick is a radical liberal who begins his theory with the idea that “I own myself”. Nozick, while arguing against the taxation system, compares taxation of earnings from labour with forced labour and concludes that since an individual owns himself, the labour and efforts made to earn a certain sum are also all owned by him. Thus, his conception does not allow the State to even levy taxes on the earnings of individuals. To support capping of fee charged by private healthcare systems, in addition to payment of taxes, seems to be a far cry given his liberal theory arguments.

Adam Smith is often cited as an economic liberal thinker who advocated for a free market economy, with least state intervention in the economic activities. Smith’s liberal view is that capitalism is the best method of achieving the economic ends as well as individual rights (such as the right to property) of the citizens. He developed the concept of “laissez-faire” which means the adoption of such economic policies that have a minimum or no governmental interference in the economic affairs of individuals and society.

John Rawls, another liberal thinker, mentions that his theory does not support either capitalism or socialism for achieving the political conception of justice, however, jurists have argued that Rawlsian liberal analysis fends support to the free-market liberalism. The overlapping consensus argument made by Rawls strengthens the claim for having a free-market economy where the individuals have the freedom to operate within the economy, with minimum fetters placed by the State.

Communitarianism vis-à-vis healthcare systems

The communitarian conception lays greater emphasis on the collective importance of the society rather than the centrality of an individual, as postulated by Amitai Etzioni. Communitarianism links the individual to the community and maintains that an individual cannot exist independent of his connection with the society. Lawrence Gostin recognizes that abridgment of individual rights is possible however, it must pass several tests to reach the conclusion that such abridgement is necessary for the larger interest of the community, and other communitarians like Michael Sandel, Walzer, Alasdair Macintyre etc. would seem to agree with his opinion. Therefore, a communitarian perspective places the collective interests of the community above the individual rights by holding that individual rights may be abridged to pave way for the interests of the community.

Communitarianism values the community per se and would garner support for the argument that equity in healthcare is a social phenomenon, which must be respected. Communitarianism purports to characterize a way of thinking about ethical problems, which generally revolves around the community at the centre. Each individual is a part of the community and owes a social responsibility towards the society, which appears to transcend above the individual rights. Public health and healthcare systems concern the community as a whole and therefore, incorporation of equity in healthcare is inevitable.

Prevention of disease and promotion of health are core moral values that impact the community at large. A communitarian perspective on the aforementioned issues would warrant the conclusion wherein healthcare ceases to be an individualistic good but becomes a community good. Healthcare thus being a community good, a communitarian would allow abridgement of individual rights in order to facilitate healthcare services for the larger community.

While encapsulating his idea of the common good in light of the recent COVID pandemic, Michael Sandel made the following statement to the New York Times:

The common good is about how we live together in community. It’s about the ethical ideals we strive for together, the benefits and burdens we share, the sacrifices we make for one another. It’s about the lessons we learn from one another about how to live a good and decent life.

Analysis of the recommended capping on treatment charges: Why exigent

The recommendation for capping fee chargeable by private hospitals during the unprecedented COVID-19 pandemic will soon be implemented in Delhi, and maybe later in other States as well wherein the situation will warrant the establishment of such cap in order to facilitate treatment of the COVID-affected citizens.

As per the present data, there have been around 6,49,889 positive cases in India with deaths totalling to around 19,000 (last updated: July, 04, 2020). There is no denial of the fact that public health at large has been affected by the spread of the virus. Ordinary citizens were left to face the brunt of the weak public healthcare systems by paying hefty costs of around Rs. 1 lakh per day to the private hospitals for COVID treatment. The situation worsened to a point where inflicted patients were dissuaded from having treatment for the virus as paying extortionate prices were beyond imagination for many. With the increasing number of patients deciding not to opt for the treatment given the exorbitant pricing by the private hospitals, other citizens were left more susceptible to being infected with the Coronavirus, thereby aggravating the health risks posed to the society at large.

In order to tackle the above conundrum of increased health hazards, capping of the fee charged by private hospitals for treatment of the infected patients seems to be the most plausible way out given the unprecedented nature of the pandemic. However, it is quintessential to consider the present issue from the two perspectives mentioned above.

Juxtaposing the two views in light of the concerned issue

The fixing of upper limits for treatment of COVID-19 patients by the private hospitals is most likely to be fraught with criticisms from the private stakeholders. The criticisms are likely to be flowing from the liberal perspective wherein the private hospital owners would argue that capping of the chargeable fee implies abridgement of their right and autonomy to charge citizens for the services offered by them. A liberal economic conception seeks to achieve maximum protection of individual rights while ensuring least State interference. Private hospitals are constructed on private properties, using private investment and thus, State’s interference in their economic affairs by way of capping of the chargeable fee might invite strong liberal concerns from the stakeholders.

A democratic form of government (like India) must prepare itself to reply to such criticisms. A communitarian conception of the present issue appears to be the most appropriate response to such anticipated claims. In light of the unprecedented pandemic, private healthcare systems must align with the public ones to ensure proper treatment of the patients rather than focussing on their own objective of maximisation of profits. As already stated, the charging of exorbitant prices for treatment ultimately leaves the society at greater peril of being infected with the Coronavirus. Therefore, public health being a community good, and more so considering the global COVID19 pandemic, a communitarian view supports the State’s recommendation of capping fee chargeable by private hospitals for the treatment of its citizens.

Communitarianism over Liberalism: Need of the hour

The present analysis suffices to indicate that communitarianism and not liberalism is the need of the hour. With the world trying to manoeuvre its way through the global pandemic, India is also currently 4th worst hit by the Coronavirus. Additionally, this position is a result of the available data regarding positive cases and a number of deaths, while under-testing continues to remain a lurking issue thus, suggesting a greater risk to India’s public health.

Therefore, considering the nature of the rapidly growing pandemic, communitarianism conception needs to be accommodated in the Indian healthcare sphere. Private hospitals are separate legal entities in the eyes of law i.e. they have certain rights and liabilities as a separate legal individual. Rather than maximizing profits, private healthcare systems should now aim at better treatment of the infected patients in order to help India fight this pandemic and eventually become COVID-free. Capping of charges is one such measure to facilitate treatment of maximum corona-infected patients, and thus, it ought to be welcomed by all in the larger public interest.


ABOUT THE AUTHOR

Abhinav

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Abhinav is a third-year law student pursuing B.A. LL.B. (Hons.) at National Law University, Jodhpur.

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