New Delhi: Whether Sonam Wangchuk should continue treatment at Safdarjung Hospital or be allowed to shift to a private facility of his choice became the focal point of a Delhi High Court hearing Monday, with his family invoking the constitutional right to bodily autonomy and informed consent, and the Centre arguing that such autonomy cannot be absolute when the protester’s health has implications for law and order.
On the argument of Wangchuk’s bodily autonomy, Solicitor General Tushar Mehta, appearing for the government, emphasised that “when the consequence of the deterioration of your health or your potential death has an impact on the law and order situation, it is different” and “right of autonomy, like any other right, can never be absolute”.
A bench of Chief Justice D. K. Upadhyaya and Justice Tejas Karia, hearing the matter, directed all reports pertaining to Wangchuk’s health based on samples analysed in the labs of Safdarjung hospital, AIIMS and the private lab to be filed in an affidavit, attested by the director of Safdarjung hospital.
The reports of tests conducted by Wangchuk’s wife in a separate private lab are also to be filed and should include Monday’s sample analysis as well, the court has directed, requesting AIIMS Director Dr Akshay, in-charge of emergency medicine, and part of the team treating Wangchuk, to be present in court Tuesday, 12.30 pm. The private doctor whom Wangchuk is consulting will also be present.
In a special Sunday sitting, Justice Mini Pushkarna had denied Gitanjali Angmo’s plea to shift her husband Sonam Wangchuk from Safdarjung Hospital to a private hospital of their choice. Angmo had filed the plea seeking Wangchuk’s immediate discharge from the state-run facility.
Justice Mini Pushkarna said: “Since the government has taken Wangchuk on account of medical intervention, this court does not find the same as an arbitrary action,” basing her decision on the division bench order passed on 16 July.
Angmo has challenged Sunday’s single bench order before the division bench, stating that the order takes away Wangchuk’s bodily autonomy as it takes away his right to choose his medical treatment and allows doctors to override the choices of a conscious and competent adult.
Arguments in court
Representing Dr Gitanjali Angmo, senior advocate Amit Sibal drew the court’s attention to the 16 July order—passed by the same bench—which asked the government to ensure the best efforts are made for Wangchuk’s medical efforts.
Sibal told the court that Wangchuk’s blood sample was taken on 17 July but without consultation with his family or prior intimation; and the report was not shared. Wangchuk was taken to Safdarjung on 18 July without his consent, Sibal said.
He also showed the submissions made by Wangchuk to the hospital administration and Angmo’s request and handwritten representation for transparency regarding her husband’s medical records. Angmo had also requested that her husband not be given anything orally or intravenously. Sibal also pointed to the hospital’s bulletin about Wangchuk’s health and how it said that his health “could become worse”.
“Should a doctor wait for a patient to be in the ICU to be administered a drug?” asked Chief Justice Upadhyaya. He also said the court cannot say anything on the medical reports as it was the domain of experts. The court could only ask for more transparency from the hospital about Wangchuk’s health reports, he said.
Sibal drew the court’s attention to Wangchuk’s Monday letter noting that “today is the culmination of a month-long protest that he has played some part in”. Even if Wangchuk and his family’s trust-deficit in Safdarjung hospital is misplaced, it has to be taken into account, he said. Sibal referred to the Common Cause judgment on passive euthanasia from 2018, showing the primacy of bodily autonomy and the importance of consent being inviolable, adding that Wangchuk’s case hasn’t even reached there yet.
Wangchuk is “willing to be discharged against medical advice so that no blame falls on the doctors, and if required he will go back to doctors for advice” Sibal told the court in his detailed submission.
Leading the submission for the central government, Solicitor General Tushar Mehta said that when the first PIL was moved (by an advocate named Rakesh Kumar Saini praying for force-feeding Wangchuk), it was concern about an individual’s health. His report was “substantially the same” in the Safdarjung, AIIMS and private hospitals, Mehta said.
When the court sought Wangchuk’s latest health report, which was found to be not needing any “intervention” as of now, Justice Karia noted that they were not normal but borderline.
The bench tried to persuade Sibal to not “think of this as ideological reform” and orally observed that the court’s “concern is to save his life”. Therefore, whatever samples have been analysed (by Safdarjung Hospital, AIIMS and the private laboratory), should be compiled and filed in an affidavit, the bench said.
The bench also asked Sibal about the “legitimate opposition” to being at Safdarjung, to which Sibal said it went against Wangchuk’s choice. If needed, government doctors could monitor his health even when he was admitted in a private hospital, Sibal added.
The Chief Justice also noted that if they have concerns with Safdarjung, “it is okay” but AIIMS can’t be doubted.
(Edited by Viny Mishra)