Legislation and Government Policy

Patient’s Right to be Discharged

Nikita Aggarwal


Hospitals cannot hold patients hostage over unpaid bills

Recently, A hospital in Madhya-Pradesh tied an 80-years-old man to a hospital bed over alleged non-payment of hospital dues by his relatives. The treatment meted out to this man is inhumane to say the least. Unfortunately, this is not an isolated tale. In fact, hospitals across the country follow such brutal practice of detaining patients or in some cases bodies of deceased over pending bills. 

This article analyses the rights of patients held ‘hostage’ by the hospitals vis-à-vis the hospital’s legitimate claim to its fee.

Governing legal framework

India, unlike other countries, does not have an enforceable and comprehensive document governing right of patients. Legal provisions related to patient’s rights are scattered across various legislations viz. The Constitution, Article 21; Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002; The Consumer Protection Act 1986 etc. The National Human Rights Commission did attempt to consolidate the patient’s rights and released a ‘Charter of Patients’ Right’ in 2018 delineating 17 basic rights of the patients. From the right to information to the right to protection for patients involved in clinical trials, the Charter contains it all. One particular right which is of great significance in present context is the Right to take discharge of patient, or receive body of deceased from hospital.

Under the Charter, “A patient has the right to take discharge and cannot be detained in a hospital, on procedural grounds such as dispute in payment of hospital charges.” The Charter not only extends a right to the patients, but also casts an obligation on the hospital management to “observe these rights and not to indulge in wrongful confinement of any patient, or dead body of patient, treated in the hospital under any circumstances.” Alas, the Charter is only an enabling document and has left it upon the Union and State governments to formulate specific laws to enforce these rights. It, thus remains only ‘a toothless tiger’.

Rights of the patient held ‘hostage’ by the hospital

Even in the absence of a dedicated law, the following recourses remain available:

1. Detaining a patient against his will is, to say the least, a violation of his fundamental right to freedom of movement. The patient or any person on his behalf, thus, can approach the writ courts under Article 32 and 216 of the Constitution by filing a Habeas Corpus writ petition. Interestingly, the scope of this “great and efficacious writ in all manner of illegal confinement, has now been considerably expanded by the Courts to extend to it non-state authorities. Courts have successfully resorted to the writ of habeas corpus to secure release of a person from unlawful detention. 

A precedent ould demonstrate the efficacy of this remedy in cases of hospital detention. In 2017, a son moved a habeas corpus petition against a Hospital in Delhi where his father was illegally detained over outstanding dues to the tune of Rs. 13.45 Lakhs. The Delhi HC highly criticised the ‘Modus Operandi’ adopted by the Hospital and directed the Hospital to prepare the discharge summary and release the patient with immediate effect. The Court further said that, “Merely because dues of the Hospital treating the patient are outstanding, that certainly cannot be the reason to withhold the release of a patient, particularly when the next of kin of the patient is desirous of removing the patient at their own responsibility”. 

2. Illegal detention could also invite a criminal suit. The aggrieved person can file a FIR against the hospital under Section 342 for wrongful confinement.  According to section 340 IPC, Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.” The same is punishable for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Even the draft Charter of Patients mentions these provisions from the penal code in the reference column alongside the description of the right to be discharged. The provision has seldom been used in cases of illegal detention by hospitals. There is, in fact, no reported case of a hospital facing criminal liability for illegal detention.

3. In the alternative, the patients can file a complaint under the Consumer Protection Laws. During the regime of Consumer Protection Act, 1986 patients could approach the Consumer Forums for grievances against the hospital. With the new act coming into force in 2019, which has removed ‘healthcare’ from the definition of services but has not explicitly excluded the same; the moot question that now looms is “Whether Hospitals can be held liable under Consumer Protection Act, 2019?”. The conflict between the Supreme Court verdict in Indian Medical Association v. VP Shantha, where medical profession was brought within the ambit of a ‘service’ under the ambit of consumer services and the new consumer protection law can only come to an end by another verdict of the Court.

The Hospital’s rightful claim on the fee

The hospitals might argue, perhaps rightfully so, that they have a claim to demand fee for the services rendered to the patients. Afterall, if that person just walks out and they never see them again, (the workers) lose that (money). The hospitals’ might thus, justify their stance saying that they would be forced to close their doors if they could not use such means to oblige patients to pay their bills. While debt is one important and undetachable limb of any commercial transaction, the Hospitals’ case deserves a special discussion. In all other cases, the service provider may refuse to provide the service if upfront payment is not made. Owing to Supreme Court’s decisions in catena of cases, hospitals cannot take recourse to such mechanisms.  No hospital can cite financial reasons to refuse emergency treatment to any patient.

Another concern which have been raised by hospitals is existence of a very little or no emphasis on patients’ obligations. The Secretary General of the Indian Medical Association, in an interview once said that the provision regarding the patients right to discharge without delay on procedural grounds remains incomplete without a correlated duty of the patients to pay their bills. He said, someone has to take the responsibility to make the payment. That should be made clear and it cannot be open-ended.” 

Therefore, the Hospitals take recourse to such inhumane measures. Alternatively, they could file a suit and then wait (for years) while courts reach a decision on their dues. This enormous number of dues has started taking a toll on the daily operations of the hospitals and it is pushing already weak Indian Healthcare industry to a crisis.


Instances of detaining patients within the institution until their incurred costs are fully paid are a common sight in many developing nations across Asia, Africa and Europe. According to WHO,  “hospital detention for financial reasons can have serious health consequences as it may negatively impact the physical and mental health of detainees, by exposing them to infection, by triggering psychological trauma or by  discouraging people from seeking much needed health care.”

In the absence of an all-inclusive legislation imposing sanctions against hospitals for infringing the rights of patients, such incidents will continue to occur. Such horrendous accounts of illegal detention of the vulnerable is also against many international obligations of the Country. The detention of anyone for non-payment of a debt specifically violates Article 11 of the of the International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which India is a party, requires states to progressively realize the right to the highest attainable standard of health. Hospital detention in itself is a step back as it discourages insolvent patients to curtail their treatment.

The issue at hand involves two conflicting interests i.e. the interests of patients vis-à-vis those of the health care providers. Undoubtedly, the hospitals’ streak for commercialization will have to give way to the patient’s rights.  Health-care still remains a distant dream for a large chunk of the Indian population and its commercialization is thus lamented. As opiniated by the Bombay HC in a case, courts cannot issue regulations pertaining to the issue without committing judicial overreach and it is therefore the government to issue a mechanism to protect such patients and their families.

A balanced legislation is thus the need of the hour. It must contain liabilities for both the hospitals and the patients. Such a legislation must be complemented with a series of progressive policies aimed at ensuring health care services to the poorer strata of the country. Such measures could range from a cost exemption system for poor, a wide r insurance cover to introduction of community-based health care system. Such reforms must aim at upholding the four important elements vis-à-vis right to health- availability, accessibility, acceptability and quality.  As it is in the case of every other legislative measure in India, effective implementation remains the key to success. 

The Editor is a B.A. LL.B. (Hons.) student at the Rajiv Gandhi National University of Law, Punjab