Hysterectomies of women below 40 years of age to be reported : Supreme Court -- Adv. ROHiT ERANDE ©

 “Hysterectomies of women below 40 years of age to be reported".

 "Unnecessary Hysterectomies infringe the Fundamental Right of Life as enshrined under Art.21 of the constitution”.

"Hysterectomies if proved to be unnecessary may result into blacklisting of Hospitals and cancellation of their License."

All States and Union Territories shall adopt the Guidelines within three months and report compliance to MoHFW

Adv. ROHiT ERANDE ©

 Case Details : Writ Petition (Civil) No 131 of 2013

 Dr Narendra Gupta V/s Union of India                

 Before : Hon. Dr Dhananjaya Y Chandrachud, CJI and Hon. J B Pardiwala

Judgment dated 05/04/2023.

Judgment Link :

https://main.sci.gov.in/supremecourt/2013/5925/5925_2013_1_22_43332_Judgement_05-Apr-2023.pdf

 

Facts in short :

1.  The Petitioner filed a public interest litigation in 2013 highlighting the fact that in the States of Bihar, Chhattisgarh and Rajasthan, in particular, “unnecessary hysterectomies” were carried out under the Rashtriya Swasthya Bima Yojana as well as other government schemes related to healthcare.  

2.  The  petition  also  highlights  the  involvement  of  private  hospitals  in performing such hysterectomies. The Union Ministry of Health and Family Welfare¹ is the first respondent, while the States of Bihar, Rajasthan and Chhattisgarh are impleaded as the second, third and fourth respondents respectively. Based on his field work, the petitioner has contended  the fact that women, who should not have been subjected to hysterectomies and to whom alternative treatment could have been extended, were subjected to hysterectomies, seriously endangering their health in the process. The petitioner also submitted that most women who were subjected to hysterectomies of this kind belonged to the Scheduled Castes, Scheduled Tribes, or Other Backward Communities.

3.  On 13 December 2022, this Court directed the Secretary, MoHFW to examine the grievance which was raised in the petition and to file a response after collating relevant information.

 

4.  The Hon’ble Court observed that it must be recorded, at the outset, that from the counter affidavits filed by the States of Rajasthan, Bihar and Chhattisgarh, it emerges that there is a considerable degree of substance in the facts which have been highlighted in the petition. For instance, the affidavit filed by the State of Bihar indicates that steps were taken by the district authorities in Kishanganj, Madhubani, Samastipur and Saran to enquire into complaints regarding unnecessary hysterectomies.

 

5.   Finding that many of the allegations in regard to the performance of unnecessary hysterectomies were true, the State has taken consequential action. It issued a circular inter alia directing that empanelled hospitals must obtain permission from the concerned insurance provider before conducting hysterectomies on women aged forty or below. The Apex Court has been apprised of the fact that several hospitals have been blacklisted and de-empanelled from the Rashtriya Swasthya Bima Yojana pursuant to the investigation conducted in the state. In certain cases, First Information Reports have been filed.

 

6.  The State of Rajasthan has placed on the record the steps which were taken by the District Collector, Dausa for constituting committees to enquire into the alleged incidents. The State of Rajasthan framed the Rajasthan Government Clinical Establishments (Registration and Regulation) Rules 2013. The State of Chhattisgarh constituted a High Powered Committee which found that the hysterectomies in the state could not be termed as “wholly unneeded.”

 

7.  The right to health is an intrinsic element of the right to life under Article 21 of the Constitution. Life, to be enjoyed in all its diverse elements, must be based on robust conditions of health. There has been a serious violation of the fundamental rights of the women who underwent unnecessary hysterectomies.

 

8.  In 2022, MoHFW issued guidelines titled “Guidelines to Prevent Unnecessary Hysterectomies,” which have been forwarded to all the States and Union Territories for compliance. The Guidelines were formulated after a series of consultations with different stake holders. The Guidelines indicate that while in developed countries hysterectomies are typically conducted amongst pre- menopausal women above the age of forty-five years, in India, community based studies have consistently found rising hysterectomy rates among young women, ranging from twenty-eight to thirty-six years of age. Field based studies have indicated that unnecessary hysterectomies are performed in cases where medical or non-invasive treatment would have been sufficient. The evidence indicates a higher risk among poor, less educated women, particularly in the rural areas.

 

9.  The hon’ble Apex Court referred to the Paragraphs 5.1.3 to 5.1.5 of the affidavit filed by the Secretary, MoHFW are set out below:

 

“5.1.3. Data from National Family Health Survey-4 (2015-16) estimates hysterectomy prevalence to be 3.6% amongst women aged 36-39 years, 9.2% amongst women aged 40-49 years and the median age for hysterectomy is 37 years.

 

Notably, two-thirds of the procedures were conducted in private facilities.

 

                                      A working paper from the National Health Authority on early trends from AB-PMJAY indicates that 2% of the claims submitted by women were for hysterectomy. Notably, six states – Chhattisgarh, Uttar Pradesh, Jharkhand, Gujarat, Maharashtra and Karnataka – generated three quarters of all hysterectomy claims.”

 

10.   In 2019, a national consultation on unnecessary hysterectomies identified three important challenges:

 

a.   The need for appropriate clinical and population level guidelines;

  b.  Availability of appropriate information on and treatment of gynaecological morbidity at the primary level; and

 c.   The critical need to monitor and regulate the appropriate use of hysterectomies, particularly for treatment of benign gynaecological conditions and amongst younger women.

 11.   Chapter 3 of the Guidelines provides guidance on prevention of unnecessary hysterectomies. The Guidelines note that reporting of hysterectomies, cases conducted for women less than 40 years of age and the cause of the hysterectomy have to be incorporated in the existing screening checklist. To achieve this, the Guidelines propose the setting up of Hysterectomy Monitoring Committees at District, State and National levels. Chapter 3 also deals with District, State and National Hysterectomy Monitoring Committees and it proposes to Issue necessary orders to both public and private sectors to submit a line list of all women who underwent hysterectomy every month. The line list must include information on parameters such as

·         Age

 ·         Parity

 ·         Occupation

 ·         Indication of hysterectomy

 ·         Previous medical/surgical history

 ·         Hysterectomy route:

 •       Abdominal

 •       Vaginal

 •       Laparoscopic

 ·         Any other surgery done along with hysterectomy:

 ·         Past treatment history:

 ·         HPE:

 §  Every quarter the district committee must audit cases with following indications and issue necessary instructions if required:

 ·         Hysterectomy with/ without BSO in women <35 yrs. of age

 ·         Hysterectomy with BSO in women< 40 yrs. of age

 ·         All cases where no indication for doing the procedure is mentioned in the records

 ·         All cases         where      no records of     treatment  prior        to hysterectomy (in papers or in history) are available

 ·         Discrepancy between mentioned indication and HPE report o Any severe morbidity/mortality due to hysterectomy

 ·         Annexure 3 provides detailed guidelines on how to conduct audits of hysterectomies

 ·         Arrange necessary trainings and sensitization sessions for both public and private sector professionals.

 

 

12.   The Hon. Apex Court then mentioned that Ayushman Bharat Pradhan Mantri Jan Arogya Yojana which provides an annual health cover of Rs. 5 lakhs per family has been extended to cover twelve crore families across the nation. The scheme covers the treatment of 1949 procedures, including hysterectomies under 27 different specialties. As of 16 March 2023, 45,434 hospital admissions were authorized under this scheme for hysterectomy related treatments. Two Standard Treatment Guidelines have been developed for fourteen procedures relating to hysterectomies. The Union government has set out the details of procedures and State/UT-wise details of authorized hospital admissions for the purpose of hysterectomies under the Scheme.

 

13.  Besides setting out the provisions of the Guidelines, the status report filed by the Union government indicates the steps which were taken by the States of Chhattisgarh and Bihar while dealing with the performance of unnecessary hysterectomies. The Union government has proposed an action plan in its status report,

 

14.   The Hon’ble Apex Court has issued guidelines to the effect that :

 a.   All States and Union Territories shall adopt the Guidelines within three  months and report compliance to MoHFW;

b.  All the States and Union Territories shall implement the Guidelines without delay and report compliance to MoHFW; and

c.   All the States and Union Territories shall ensure that all public and private hospitals within their territories are made aware of the existence and importance of the Guidelines.

  The Guidelines, for convenience of reference, are annexed to this judgment as  Annexure A to facilitate compliance.

 (You will find the Annexure A once you open the original judgment link given  above) 

15.    It was also suggested by the Petitioner that under the Ayushman Bharat Pradhan Mantri Jan Arogya Yojana, where a hysterectomy is performed on a woman below the age of forty years, the requirement of the procedure has to be certified by at least two doctors. To which it was replied by the Union that once all the nationwide data is captured, some positive steps can be taken. Moreover, the ASG urged that there is a real danger that this may result in the denial of treatment to women who are genuinely in the need of it. It has been submitted that since the situation is evolving, the Union of India would take a considered view once adequate data is available.

 16.   On the contention of the Petitioner on blacklisting of the Hospitals where unnecessary , hysterectomies were carried out without medical necessity and without obtaining the informed consent of the patient the Apex Court held  that all the States and Union Territories must take stringent action for blacklisting hospitals once it is detected that any unnecessary hysterectomy was carried out or that the procedure was taken recourse to without the informed consent of the patient. We direct that necessary action be taken in accordance with law.

 

17.  It was noted by the Court about the steps taken by the Union government in framing the Guidelines in 2022 and the States of Chhattisgarh, Bihar and Rajasthan who have indicated to the Court of the steps which were taken to detect unnecessary hysterectomies and to deal with them, we see no further reason to keep the petition alive.

It is indeed very very important judgment. The Court has touched the important social issue. Indeed, it has also increased the responsibility and Work of Doctors and Hospitals.  All the cases cannot be seen from same yardstick. I think FOGSI should have been involved or now FOGSI should file review petition not for challenging it but for more clarifications if required. 

Thanks and Regards

 

Adv. ROHiT ERANDE ©