Delhi High Court: In a petition filed under Article 226 of the Constitution, Pratibha M. Singh, J.*, opined that non-adherence to timelines had resulted in extended waiting periods of two to three years in some cases before a decision was made, which contradicted the intent and also, the letter and spirit of the Transplantation of Human Organs and Tissues Act, 1994 (‘1994 Act’) and the Transplantation of Human Organs and Tissues Rules, 2014 (‘2014 Rules’). Such prolonged delays could cause significant mental and physical anguish for donor, recipient and their respective families to proceed with the decision-making process.
The Court further prescribed various timelines to be followed in such cases and opined that the suggested timelines were provided as a reference for the competent authority, which enabled them to make an informed decision in the matter. The Court opined that the competent authority was expected to issue a proper communication to all stakeholders, prescribing timelines and ensuring their adherence. The Court further stated that the present judgment should be placed before the Secretary, Ministry of Health and Family Welfare to ensure that the timelines under the 1994 Act and 2014 Rules were prescribed for all steps, after consultation with the relevant stakeholders.
Background
On 20-02-2006, Petitioner 1 had retired from the Indian Air Force and on 20-03-2017, he was diagnosed with the end stage chronic kidney disease (‘CKD’). Thereafter, from March, 2017 to November, 2018, he obtained treatment from various hospitals and one of the hospitals advised him regular maintenance haemodialysis twice a week and undergo dialysis thrice a week.
In December, 2018, Gurgaon Hospital recommended pre-emptive renal transplant and subsequently, by May, 2019, another Bareilly Hospital also advised the petitioner to undergo kidney transplantation. However, in June 2019, Petitioner 1 attempted to obtain approvals for transplantation, which was refused at the Army Hospital, New Delhi, due to the non-availability of a ‘near relative’ donor as per Section 2(i) and Section 9(1) of the 1994 Act.
Further, on 25-06-2019, Petitioner 1 consulted Respondent 1, wherein he was again diagnosed with hypertension and CKD stage V, and pre-emptive renal transplant was planned. Subsequently by July, 2019, the petitioners were stated to have completed the requirements for transplant under the 1994 Act and 2014 Rules. In September, 2019, DNA profiling of both the petitioners were conducted by Respondent 1 and Certification of Medical Fitness of Living Doner was issued to Petitioner 2. Later, on 08-02-2020, Petitioner 1 was admitted to Bareilly hospital due to kidney infection and remained hospitalised for five days.
The petitioners stated that Respondent 1 raised various objections and the petitioners continued to supply for all the required documents. Since, no decision was taken by Respondent 1, therefore, the petitioners filed the present petition. However, Petitioner 1 passed away during the pendency of the petition.
Analysis, Law, and Decision
The Court opined that absence of timelines under Rules 21 and 23 of 2014 Rules for holding of pre-transplantation interviews by the Authorisation Committee had led to delays, and in some case, like the present one, the recipient had passed away, awaiting the decision of the Authorisation Committee. Under the 1994 Act and 2014 Rules, pre-transplant assessment of the potential donors was a critical component of the organ transplantation process. However, significant delays in the interview process hampered the ability of the receipt to receive timely transplantation of the required organ under the 1994 Act.
The Court opined that the pre-transplantation interviews played a crucial role, as the authorisation committee had to ascertain that there were no commercial considerations in the donor donating the organ to the donee. However, such interview and documentation required to be done in a timebound manner, failing which the purpose and the process itself, would be defeated. The Court opined that the quick decision making was crucial, not just for donor or the recipient, but also for their respective families. The complex nature of the process deterred organ donation, which would not be in overall interest of the society. The intention of the respective Acts and Rules, was to regulate the organ donation and not to completely dissuade the same.
Thus, the Court opined that considering the critical importance of such interviews, it was necessary to establish timelines under the 2014 Rules, as such a time-bound approach was crucial to maintain the integrity and effectiveness of the organ transplantation protocols, and it would also, be in furtherance of right to health under Article 21 of the Constitution.
Further, considering that there were similar cases which were arising, the Court opined that the timelines ought to be fixed at each of the steps. Thus, the Court stated that the processing of application under Rule 11 of the 2014 Rules, need to be completed within maximum ten days from the date of the application. Further, the verification of documents as per Form 20 of the 2014 Rules, must be completed within maximum fourteen days.
With respect to document completion, the Court stated that, within the prescribed timeline under the 2014 Rules, any opportunity given to the donor or recipient to complete the required documentation must be communicated. Further, the donor or recipient should be given a maximum of one week to respond. If further opportunities needed to be given, the same ought to be given after due consideration, with a strict deadline and upon expiry of this timeline, the case should be presented to the Authorisation Committee.
Further, with respect to scheduling interviews by the Authorisation Committee, the Court stated that after four to six weeks from receiving the application, the interview ought to be scheduled within a two-week period. The Court stated that during the above two-week, the Authorisation Committee ought to conduct the interview of the donor/recipient on one or two occasions, facilitate a meeting of family members of both the donor and the recipient and also, convey the decision as per Rule 23 of the 2014 Rules. The Court stated that the entire process, from submission to decision, ought not to ideally exceed six-eight weeks.
Further, regarding the appeal process, the Courts stated that under Rule 33, any appeal against an order should be decided within a maximum of thirty days.
The Court opined that non-adherence to timelines had resulted in extended waiting periods of two to three years in some cases, which contradicted the intent of the 1994 Act and 2014 Rules. Such prolonged delays could cause significant mental and physical anguish for donor, recipient and their respective families to proceed with the decision-making process.
The Court opined that Petitioner 1’s demise occurred during the pendency of the petition, promoted the Court to hear submissions and make such observations. The suggested timelines were provided as a reference for the competent authority, which enabled them to make an informed decision in this matter. Furthermore, the competent authority was expected to issue a proper communication to all stakeholders, prescribing timelines and ensuring their adherence. The Court further stated that the present judgment should be placed before the Secretary, Ministry of Health and Family Welfare to ensure that the timelines under the 1994 Act and 2014 Rules were prescribed for all steps, after consultation with the relevant stakeholders.
[Amar Singh Bhatia v. Ganga Ram Hospital, 2024 SCC OnLine Del 30, decided on 04-01-2024]
Advocates who appeared in this case:
For the Petitioners: Charu Aneja, Advocate;
For the Respondents: Subhash Kumar, Advocate; Saroj Bidawat, Advocate; Rishikesh Kumar, ASC GNCTD with Sheenu Priya, Sudhir Kumar Shukla and Sudhir Sumit Choudhary, Advocates.
*Judgment authored by- Justice Pratibha M. Singh