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State Legislative Brief
The Kerala Public Health Bill, 2021
Key Features
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Key Issues and Analysis
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The Bill was introduced in the Kerala Legislative Assembly on October 27, 2021. It seeks to replace the Travancore-Cochin Public Health Act, 1955 and the Madras Public Health Act, 1939 and provide a three-tier public health governance system in the state. The Bill has been referred to a Select Committee. |
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PART A: HIGHLIGHTS OF THE BILL
Context
Public health includes preventing disease, prolonging life and promoting health through organised efforts.[1] Water, sanitation, environmental factors, and lack of quality housing are public health concerns due to their ability to influence health outcomes.[2] Under the Constitution, states have the power to regulate health.[3] Pursuant to this power, several states such as Kerala, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, Goa, and Assam have passed public health laws.[4],[5],[6],[7],[8] These laws regulate the spread of communicable diseases, water supply, sanitation, and conduct of festivals. (See Table 2 in the Annexure for a comparison of public health laws across states.)
With the onset of Covid-19, many states notified regulations under the Epidemic Diseases Act, 1897 to control the spread of the virus.[9],[10],[11] The Parliamentary Standing Committee on Home Affairs (2020) had noted that the 1897 Act is outdated and recommended updating it to effectively deal with future emergencies like epidemics.[12] In 2014, the Law Commission included the 1897 Act in the category of laws whose repeal had been recommended by various commissions.[13] The central government has made attempts in the past to revisit the law.[14],[15]
In Kerala, the Tamil Nadu Public Health Act, 1939 was in force in the Malabar region, and the Travancore-Cochin Public Health Act, 1955, was applicable in the rest of the state.4,5 The Kerala Public Health Ordinance, 2021 was promulgated in February 2021 to unify the legal framework for public health governance in the state. It also sought to: (i) provide health functionaries in the state with necessary powers for the administration of public health and (ii) ensure the preparation of action plans for dealing with communicable and non-communicable diseases. A Bill to replace the Ordinance could not be introduced in the subsequent session of the Legislative Assembly, and it was promulgated again in July 2021 and August 2021. The 2021 Bill seeks to replace the 1955 Act.
Key Features
PART B: KEY ISSUES AND ANALYSIS
Lack of adequate safeguards for data collection and processing
Under the Bill, there are several provisions for health authorities and medical practitioners to collect health data of individuals. For example, the State Authority has the power to collect data on public health matters from healthcare establishments. All healthcare establishments are required to report data regarding any communicable or notifiable communicable diseases to the District and Local Authorities. Further, every medical practitioner and healthcare establishment will be required to provide data to the Local Authority or the District Authority on any disease of public health importance. Medical practitioners are also required to furnish reports on communicable and notifiable communicable diseases to the Local Authority who forwards this data to Surveillance Officers. Contravening such provisions will lead to a penalty. The Bill does not specify safeguards for such data collection and processing.
There may be a need to collect health data of individuals to manage public health at the local level. For example, it may be necessary to identify individuals infected with certain communicable diseases and isolate them to prevent further spread of the disease. There may also be a need to assess trends related to the spread and intensity of a disease at local, district and state levels. However, the Bill provides no safeguards to be followed while collecting and processing such data. In particular, it does not require data to be anonymised before sending it to the district and state levels.
This is in contrast to a similar Act in Assam. The Assam Public Health Act, 2010 provides that every patient has the right that all information about his health status, medical condition, diagnosis, health care and all other personal information (which is identified or identifiable to him), must be kept confidential, even after his death.[16] Such confidential information can only be disclosed if the patient gives explicit consent or if provided by any other law. The information may be used for study, teaching or research only if authorised by the patient, the head of the health care establishment concerned and the Institutional Ethics Committee of the establishment.
Other laws which require collection of personal data of individuals for public purposes provide for some safeguards. For instance, the Collection of Statistics Act, 2008 provides that all statistical information published should be arranged such that any particulars do not become identifiable (unless consented to by the informant).[17] When disclosing information to other institutions, the name and address of the informant to whom the information is related to must be deleted.[18] The statistics officer must comply with security provisions of the Act when recording or copying any of the information collected.[19] The Collection of Statistics Rules, 2011 specify that the appropriate government or statistics office must satisfy itself that the information collected is limited to what is absolutely necessary.[20] They also provide that all agencies collecting statistics should take reasonable measures to ensure that personal information is: (i) protected against unauthorised access, disclosure or misuse, and (ii) used for data processing only with adequate security checks.[21] Under the Census Act, 1948 census-officers are penalised if they disclose any information which they have received through a census return, without prior sanction of the government.[22] Under the Census Rules, 1990 the Census Commissioner decides what data should be public.[23] After processing, the canvassed schedules are preserved at the office of the Director of Census Operations or any place directed by the Director.[24] Further, the schedules and connected papers are destroyed in accordance with the directions issued by the Census Commissioner.[25]
All medical practitioners may not be able to examine communicable diseases
The Bill provides that a person may approach any registered medical practitioner of modern medicine for a certificate specifying they are free from a communicable disease. The practitioner will have to examine them and issue such a certificate if they are not suffering from such disease or have been cured. Refusal to do so is punishable with a fine. However, all medical practitioners may not have the expertise or specialisation to examine people for all communicable diseases specified. For instance, a gynaecologist may not have the expertise to examine people for tuberculosis or dengue and issue such a certificate.
Lack of clarity with respect to cases of malicious abuse of power
The Bill proposes that malicious abuse of power by the Local Authority, secretary of the local government or employee of the government will be punished with a fine of up to Rs 10,000. The Bill does not define ‘malicious abuse of power’ or specify the method of investigation to be followed in such cases. Note that the Kerala Panchayat Raj Act, 1994 provides for the appointment of an ombudsman at the state level.[26] The ombudsman investigates charges of corruption, maladministration or irregularities in the discharge of administrative functions against the local government and their officers. Cases of malicious abuse of power under this Bill may overlap with cases that can be tried by the ombudsman.
Financial implications have not been specified
The Bill proposes establishing surveillance mechanisms, provision of free medical treatment in times of epidemic, and measures for tackling non-communicable diseases. This may require additional expenditure by the state. However, the Financial Memorandum of the Bill states that no additional funds will be required from the Consolidated Fund of the state for implementing the provisions of the Bill. The implementation of the Bill may be affected if adequate funds are not available.
Table 1: Key changes between the old and proposed regime for public health governance in Kerala
Provision |
Proposed Regime |
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The Travancore-Cochin Public Health Act, 1955 and the Madras Public Health Act, 1939 |
The Kerala Public Health Bill, 2021 |
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Governance structure |
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Three-tier (State, District, and Local Public Health Authorities) (Director of Health Services → District Medical Officer (Health) → Health Officer of concerned local body) |
Public health emergency |
Provision for appointing temporary Health Officers and assigning public health staff from one urban local authority for temporary duty in another urban local authority. |
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Communicable diseases |
Classifies diseases into: (i) infectious diseases, (ii) notified infectious diseases, and (iii) venereal diseases (sexually transmitted diseases). Leprosy is classified as a separate category. In the 1939 Act leprosy is classified as both an infectious and notified infectious disease. |
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Infectious diseases include malaria, polio, measles, chickenpox, cholera, dysentery, rabies, tuberculosis (TB), and typhoid. |
Adds chikungunya, dengue fever, Ebola, tetanus, epidemic influenza, infective hepatitis, etc. to the list of communicable diseases. |
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Notified infectious diseases include certain infectious diseases (such as malaria, chickenpox, cholera, rabies, and TB). That is, all notified infectious diseases are also infectious diseases. |
Notifiable communicable diseases include certain communicable diseases (such as TB, polio, and tetanus), and certain other diseases (such as yellow fever, nipah, and covid-19). |
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Non-communicable diseases |
No provision |
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Communicable/ infectious diseases |
The concerned local body may provide: (i) additional health staff, medicines, equipment, etc., and (ii) hospitals and wards for receiving and treating patients, and ambulances to carry them. Duty of medical practitioner to inform the concerned authority of any cases of infection. |
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Notifiable communicable diseases |
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Sources: The Travancore-Cochin Public Health Act, 1955; The Madras Public Health Act, 1939; The Kerala Public Health Bill, 2021; PRS.
Table 2: State-wise comparison of public health laws |
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Provision |
Kerala (2021 Bill) |
Tamil Nadu5 |
Andhra Pradesh7 |
Madhya Pradesh6 |
Uttar Pradesh (2020)[27] |
Goa8 |
Assam (2010)[28] |
Authorities |
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Public health coverage |
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Water supply |
Local Authority will monitor and give directions to ensure supply of safe drinking water. |
Local Authority will monitor and provide drinking water. Local Authority may levy water tax, as sanctioned by government. |
Local Authority will monitor and provide drinking water. Local Authority may levy water tax, as sanctioned by government. |
Local Authority will monitor and provide drinking water. Local Authority may levy water tax, as sanctioned by government. |
No specific provision |
Local Authority will monitor and provide drinking water. Local Authority may levy water tax, as sanctioned by government. |
Health Department will coordinate with other departments to provide safe drinking water. |
Sanitation |
Local government will provide and maintain public sanitary conveniences. |
Local authority will provide and maintain public sanitary conveniences. |
Local authority will provide and maintain public sanitary conveniences. |
Local authority will provide and maintain public sanitary conveniences. |
No specific provision |
Local authority will provide and maintain public sanitary conveniences. |
Health Department will coordinate and provide sanitation. |
Vector Control |
Local government will take measures for prevention and control of insects. |
Act prohibits mosquito breeding in standing water. Health Officer will take steps to control mosquito breeding. |
Act prohibits mosquito breeding in standing water. Health Officer will take steps to control mosquito breeding. |
Act prohibits mosquito breeding in standing water. Health Officer will take steps to control mosquito breeding. |
No specific provision |
Act prohibits mosquito breeding in standing water. Health Officer will take steps to control mosquito breeding. |
Health Department will coordinate and provide sanitation through control of insects. |
Public Health Emergency |
State Authority will specify conditions for a public health emergency. It may constitute ad hoc advisory committees during emergencies. |
Government may appoint temporary Health Officers to prevent spread of diseases during emergencies. |
Government may appoint temporary Health Officers to prevent spread of diseases during emergencies. |
Government may appoint temporary Health Officers to prevent spread of diseases during emergencies. |
No specific provision related to emergency. Act provides for the government to declare outbreak of an epidemic. |
Government may appoint temporary Health Officers to prevent spread of diseases during emergencies. |
Defined as threat of illness which needs immediate public health intervention to prevent death or disability. |
Sources: Refer to endnotes 4, 5, 6, 7, 26, 27; PRS.
[1]. Centre for Disease Control and Prevention, Introduction to Public Health, Public Health 101 Series, 2014, https://www.cdc.gov/training/publichealth101/documents/introduction-to-public-health.pdf.
[2]. National Urban Health Mission: Framework for Implementation, Ministry of Health and Family Welfare, May 2013, https://nhm.gov.in/images/pdf/NUHM/Implementation_Framework_NUHM.pdf.
[3]. Item 6 of State List in the Seventh Schedule to the Constitution of India.
[4]. Travancore-Cochin Public Health Act, 1995, https://www.indiacode.nic.in/bitstream/123456789/15961/1/16-1955.pdf.
[5]. Tamil Nadu Public Health Act, 1939, https://www.indiacode.nic.in/bitstream/123456789/13300/1/the_tamil_nadu_public_health_act_1939.pdf.
[6]. Madhya Pradesh Public Health Act, 1949, https://prsindia.org/files/bills_acts/acts_states/madhya-pradesh/1949/1949MP36.pdf.
[7]. Andhra Pradesh Public Health Act, 1939.
[8]. The Goa, Daman and Diu Public Health Act, 1985, http://goaprintingpress.gov.in/uploads/Public%20Health%20Act%20and%20Rules.pdf.
[9]. The Delhi Epidemic Diseases, Covid-19 Regulations, 2020, March 12, 2020, http://health.delhigovt.nic.in/wps/wcm/connect/c05a8d804d883d25974cf7982ee7a5c7/NED+Act.pdf?MOD=AJPERES&lmod=-754584952&CACHEID=c05a8d804d883d25974cf7982ee7a5c7.
[10]. The Maharashtra Covid-19 Regulations, 2020, March 14, 2020, https://arogya.maharashtra.gov.in/pdf/30.pdf.
[11]. The Bihar Epidemic Diseases, Covid-19 Regulations, 2020, March 17, 2020, https://egazette.bih.nic.in/GazettePublished/212_2_2020.pdf.
[12]. Report No. 229: ‘Management of Covid-19 Pandemic and Related Issues’, Standing Committee on Home Affairs, Rajya Sabha, December 21, 2020, https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/143/229_2021_2_15.pdf.
[13]. Report No. 248: ‘Obsolete Laws: Warranting Immediate Repeal’, Law Commission of India, September 2014, https://lawcommissionofindia.nic.in/reports/Report248.pdf.
[14]. Draft National Health Bill, 2009, https://nhsrcindia.org/sites/default/files/2021-06/7.The%20National%20Health%20Bill%202009.pdf.
[15]. The Draft Public Health (Prevention, Control and Management of Epidemics, Bio-terrorism and Disasters) Bill, 2017, Ministry of Health and Family Welfare, February 13, 2017, https://main.mohfw.gov.in/sites/default/files/Inviting%20Comments%20on%20Draft%20Public%20Health%20Bill%2C%202017.pdf.
[16]. Section 9, Assam Public Health Act, 2010, https://legislative.assam.gov.in/documents-detail/the-assam-public-health-act-2010assam-act-noxii-of-2010.
[17]. Section 9(4), The Collection of Statistics Act, 2008, https://legislative.gov.in/sites/default/files/A2009-07.pdf.
[18]. Section 11(2), The Collection of Statistics Act, 2008, https://legislative.gov.in/sites/default/files/A2009-07.pdf.
[19]. Section 13, The Collection of Statistics Act, 2008, https://legislative.gov.in/sites/default/files/A2009-07.pdf.
[20]. Rule 6, The Collection of Statistics Rules, 2011, https://mospi.gov.in/documents/213904/214910/COS_Rules_2011_English_26may11.pdf/f914627d-d1f5-b44d-fe3b-ca3dd9b04707?t=1590561243624.
[21]. Rule 13, The Collection of Statistics Rules, 2011, https://mospi.gov.in/documents/213904/214910/COS_Rules_2011_English_26may11.pdf/f914627d-d1f5-b44d-fe3b-ca3dd9b04707?t=1590561243624.
[22]. Section 11(1)(b), The Census Act, 1948, https://www.indiacode.nic.in/bitstream/123456789/8304/1/act_%26_rules_corrected_29-5-08%281%29_doc.pdf.
[23]. Rule 7, The Census Rules, 1990, https://thc.nic.in/Central%20Governmental%20Rules/Census%20Rules%201990..pdf.
[24]. Rule 10, The Census Rules, 1990, https://thc.nic.in/Central%20Governmental%20Rules/Census%20Rules%201990..pdf.
[25]. Rule 11, The Census Rules, 1990, https://thc.nic.in/Central%20Governmental%20Rules/Census%20Rules%201990..pdf.
[26]. Section 271 J, Kerala Panchayat Raj Act, 1994, http://sanitation.kerala.gov.in/wp-content/uploads/2017/07/the-kerala-panchayat-raj-act-1994.pdf.
[27]. Uttar Pradesh Public Health and Epidemic Diseases Control Act, 2020, https://prsindia.org/files/bills_acts/acts_states/uttar-pradesh/2020/Act%20No.%2017%20of%202020%20UP.pdf.
[28]. Assam Public Health Act, 2010, https://legislative.assam.gov.in/documents-detail/the-assam-public-health-act-2010assam-act-noxii-of-2010.
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