The World Health Organization defines health as a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. The access to the highest possible standard of physical and mental healthcare is a fundamental right, which has been entrenched in international human rights law. But this does not mean that the state is solely responsible for making sure that an individual is completely healthy at all times. The state cannot protect the individual from all kinds of illnesses, such as diseases that are hereditary and those caused by the individual’s own vulnerabilities or unhealthy habits.

Nepal’s Interim Constitution 2007 has made the following provision: “Every citizen shall have the right to basic health services free of cost from the State, as provided in law”. In general, we find that many debates have been happening within and outside of the Constituent Assembly, attempting to correct and improve such provisions before presenting them in the new Constitution. Additionally, the Interim Constitution has constitutionalized commitments such as: no person shall be deprived of his or her personal liberty, save in accordance with law; no discrimination shall be made against any citizen in the application of general laws on grounds of religion, color, sex, caste, tribe, origin, language or ideological conviction; no person shall be discriminated against as untouchable and subjected to racial discrimination in any form, on grounds of caste, race, community or occupation; an individual’s right to privacy shall be inviolable; and no person shall be subjected to physical or mental torture or to cruel, inhuman or degrading treatment. Furthermore, the Supreme Court, by elaborating further on rights related to healthcare in various public interest cases, has also contributed to the discussion.

The following content and dimensions have been kept in mind while commenting on the Bill for amending the Health Service Act:

1.    Equality and lack of discrimination in healthcare.

2.    Inclusiveness and participation in healthcare-related decision-making process.

3.    Accountability of state, concerned bodies and officials.

4.    Availability of healthcare facilities, appropriate to meet the demand.

5.    Guarantee of physical (geographical) accessibility to healthcare for the entire population.

6.    Economic affordability in healthcare.

7.    Access to information regarding healthcare.

8.    Acceptability of healthcare services from ethical and cultural standards.

9.    Appropriate quality of healthcare based on current scientific and medical standards.

10.  Legal and appropriate distribution of the instruments required for healthcare.

1. Competitive fulfillment of vacancy

Some positive amendments have been proposed to make the procedure for fulfillment of vacancy in health service more competitive. Currently, only 50 percent of the vacancy for level 5 positions is filled through open competition. The Bill proposes to raise this bar to 65 percent. For level 9 positions, the corresponding figure is currently 10 percent, and the proposed figure is 20 percent. But the Bill proposes a reduction for level 7 positions filled through open competition. Currently all level 7 positions are filled through open competition. The Bill proposes to push this down to 65 percent. Another 20 percent of seats would be filled through internal competitive examinations, and the remaining 15 percent through an evaluation of competency. Further clarification is needed on why this has been proposed.

2. Inclusiveness

It is necessary to create inclusiveness within healthcare in order to make it acceptable to people from various backgrounds – caste, gender, origin, religion, and cultural identity ­– and to increase the quality and reliability of the service by creating a feeling of ownership. Social diversity should be reflected even in the health service. The state has a legal obligation to create such an environment.

Keeping these things in mind, the Bill makes provisions on fulfillment of vacancy through open competition. Of 45 percent of the entire number of such available positions, the Bill proposes that there should be internal competition within the following groups for the following percentages of seats: women (33 percent), indigenous people (27 percent), Madeshi (22 percent), Dalit (9 percent), differently abled (5 percent), and those from marginalised areas (4 percent). Furthermore, there is a provision that suggests that women, indigenous people, Madesis, and Dalits should be understood as those from these groups that are socially and economically marginalised. But how economic and social marginalisation would be determined remains unclear. Another provision demands the reassessment of this last provision every ten years. In doing so, the demands for inclusiveness from numerous other smaller marginalised groups­ – not included in the above list – can be raised. It is necessary to dwell on this point.

3. The basis of increasing standards

In addition to the evaluation of competency and duration of service, the monitoring of whether healthcare officials have served in remote and extremely remote areas has been established as one of the foundations for increasing the quality of health service at all levels. This development is positive. The prevalence of hesitation in providing service in remote areas has meant that those living in those areas have been underserved. The proposed measure is likely to alleviate this problem to a certain extent. Additionally, if service performed in rural areas of districts not considered to be remote could be counted as serving in remote areas, it would discourage the tendency to serve only in urban areas. 

4. Geographical exposure 

Following the current provisions, the Bill proposes that healthcare officers be transferred to extremely remote, remote, and non-remote areas in the duration of their service, so that they can gain experience in all types of geographical areas. It would be more appropriate to present this provision as being guided by the state’s desire to increase its reach towards all of its citizens and to guarantee access to healthcare for all, rather than being directed at giving employees geographical exposure.

6. Operation of special programs

An important provision has been proposed to amend the Health Service Act in order to allow the ministry to operate special programs for the control of epidemics and infectious diseases. To operate such programs, a provision has been made to appoint any specialist or healthcare officer to any district or area for up to one year. Such provisions are important to uphold and protect the citizens’ right to healthcare. In order to make these provisions even more effective, it would be more appropriate to present them as legal obligations rather than matters of government jurisdiction. In expediting the control of infectious diseases and epidemics, the immediate implementation of a special program, the cooperation of all relevant officials, and the implementation of informative, promotional, and awareness-raising programs are necessary. The operation of special programs would be more effective if the provision could encompass the above-mentioned points.

6. Punishable acts

Provisions have been made to punish the act of keeping healthcare officials without assigning them any post-related responsibilities. Except for conditions like being on long holidays, suspension, or appointed for other official tasks, keeping healthcare officials in service for more than a month without delegating any post-related responsibilities will be unlawful, the Bill proposes, and the official who is responsible for not delegating any tasks can be subject to departmental investigation. This will allow for the most efficient utilisation of officers for securing and upholding the citizens’ right to healthcare. An additional provision should also be added to allow departmental investigation against any officials responsible for delegating responsibilities that are different from post-related responsibilities.   

7. Prohibited conduct

Additional provisions have been made to address the following, in accord with the Civil Service Act 1993:

a. No employee shall subject any one to torture.

b. No employee shall commit or authorise sexual abuse or domestic violence related activities.

c. Employees shall treat stakeholders politely and decently.

d. Employees must bear the responsibilities that may arise according to his/her post and perform work in an impartial, fair, efficient and prompt manner.

e. Employees must not misuse government funds.

f.  No employee shall close or authorise the shutdown of a healthcare institution.

g. No employee shall smoke or drink within the work premises and/or within working hours.

It would be appropriate to amend the proposed article 65 A (1) and (2) to prohibit even the aiding or encouraging of torture, sexual abuse, and domestic violence. Additionally, it would be more practical to define what exactly constitutes ‘torture’ under this provision.

Because of the peculiar sensitivity of healthcare, other important aspects not mentioned in the Civil Service Act should also be included. Keeping in mind the various forms of discrimination prevalent in the healthcare sector, for example, any discrimination – or the encouragement or protection of such behavior ­­– based on gender, caste, religion, origin, age, and economic background should be prohibited in the Health Service Act. Discrimination is one of the main social problems in Nepal and the healthcare sector is vulnerable to this problem as well. Such a provision is necessary to make health service more inclusive and rights based.

It is also highly appropriate to develop and implement a separate code of conduct applicable to healthcare officials, which should elaborate on the protection of privacy of the stakeholder and prohibition of violation of human rights etc.

8. Trade unions

A new provision has been proposed to allow the formation of trade unions in healthcare services. The provision is appropriate and in line with the rights enshrined by the constitution and international human rights law. However, we must also take into consideration the fact that most trade unions have recently been mobilised for party politics and self-interest, rather than for social service and accountability. Therefore, keeping in mind the sensitive nature of healthcare, it would be appropriate to make provisions to ensure that trade unions do not misuse their rights. For example, to include the responsibility of conducting various programs to raise awareness about healthcare under trade unions’ roles, responsibilities and rights would be appropriate.

The Bill proposes that any adjustment on Nepal Government’s healthcare related laws be done in consultation with the appropriate trade union. In order to make this even more effective and inclusive, it would be appropriate to modify the provision to require inclusion of other organisations involved in healthcare rights, in addition to trade unions, while creating healthcare policies and budgets.

9. Delegation of rights

The proposed Bill allows for the delegation of rights in various areas of healthcare. Twelve points, including the creation of positions in healthcare and the minimum qualification needed for open competition, will be determined ‘as prescribed’, it has been proposed. Why this is the case has not been clarified in the annotation on the provision. “It is appropriate to include this in the rules” has been stated without any further elaboration.

In the end, it is necessary to improve and amend the Health Service Act in accord with constitutional and international human rights legislation to uphold the right to healthcare. Healthcare is not simply the subject of social welfare but rather that of human rights. Therefore, any legislation related to healthcare should be prepared accordingly. In this context, the proposed Bill to amend the Health Service Act seems positive. There should not be hesitations in further improving any of the above discussions from a human rights perspective. These important exercises in improving the legislation should be foresighted from the beginning, and include stakeholders in moving forward. Additionally, the following revisions are appropriate:

* This study and recommendation paper prepared by advocate Raju Prasad Chapagain on behalf on the Nepal Constitution Foundation has been finalised based on the inputs given by various pressure groups: women’s, indegenous, Dalit, Madeshi, youth and others. The Foundation would like to thank: Bharatraj Gautam, Dr. Yubaraj Bhandari, Bishnu Pokharel, Sanulaxmi Gasi, Pramila Dewan, Ganga Thapa, Shyam Kumar Bik, Narayan Regmi, Laxmi Rawal, Komal Acharya, Smita Khadka, Raju Gurung, Pradip Rajbamsi, Nirupama Yadav, Ram Bahadur Thapa Magar, Mohan Ingnam, Saroj Bhatta, Ram Bhandari, Abhishek Adhikari, Phurpa Tamang, and Dr. Bipin Adhikari.