HCQ not banned by ICMR, can’t stop doctors from using drug: HC
The Bombay high court (HC) on Friday, refrained from passing orders against the alleged indiscriminate administration of the Hydroxychloroquine (HCQ) drug to slum dwellers on the grounds that it is the only drug which doctors are using as a last resort to treat patients. In its detailed order pertaining to various issues raised in seven public interest litigations (PIL), the court held that though there is no clinical proof to show that the drug was effective in combating Covid-19, the Indian Council of Medical Research (ICMR) had not banned the use of the drug, and therefore it could not restrain doctors prescribing it as a prophylaxis (preventive treatment).
The division bench of chief justice Dipankar Datta and justice Amjad Sayyed, while hearing the PIL filed by Jan Swasthya Abhiyaan, had been informed by senior advocate Mihir Desai that people living in the slums of Dharavi and Worli had been used as test subjects to study the viability of HCQ as a possible deterrent/antidote to the virus.
Desai had submitted that it was alarming as the drug was known to cause diarrhoea and, considering the lack of water and toilets in slums, the administration of the drug to slum dwellers would only aggravate the problem.
Desai had further submitted that the action of the state to subject some people to HCQ was without their consent, which was against the principles of democracy. He also pointed out that the trials were being conducted without the consent of the ICMR and hence, the authorities should be asked to submit details of the trials, their results, and outcomes. In light of these submissions, Desai had sought a restraint on the authorities from conducting the tests and trials.
However, the state had submitted that the use of HCQ was recommended by the National Task Force (NTF) for Covid- 19 as a prophylaxis against the Sars-Cov-2 virus, which causes Covid-19, for selected individuals and hence, there was nothing wrong in it being administered to select groups in Dharavi and Worli.
Desai in his reply to the state’s averments had submitted that the Ministry of Home and Family Welfare (MoHFW) guidelines on Covid-19 specified that HCQ was not recommended for children below the age of 12 years and pregnant and lactating women. He also noted that the Directorate of Medical Education Research (DMER) had no such restriction. Rather, it permitted the use of the drug on children prior to their being shifted to the ICU. Desai had submitted that as DMER was silent on protocols for the usage of HCQ, the state should be restrained from administering it indiscriminately.
After considering both arguments, the court observed that Desai’s submission could not be ignored. “One cannot turn a blind eye to the present situation and wait for the lengthy process laid down in the statute for trials to be completed,” the court said.
“Now, in a given case, if abiding by the law stricto sensu and waiting for a clinical trial of a drug would result in loss of valuable time for saving a patient and the choice is between the devil and the deep sea, i.e, no other drug except an HCQ sort of a drug, though not clinically tried for treating the disease, is the last option left for a doctor to save the life of such patient, should the doctor fold his hands and leave the patient to the mercy of the Almighty on the ground that the relevant drug has not been registered for use as prophylaxis? The answer, we are minded to hold, should be in the negative.”
The HC bench pointed out that the guidelines of the ICMR have not banned the use of HCQ as prophylaxis to treat Covid-positive patients and said that reports have shown that the physical harm caused by the administration of HCQ outweighs its benefits.
The court held that it was reluctant to interfere with policy decisions taken by the government in matters of public health and concerning whether a particular drug ought to be banned or not.
In light of the fact that the MoHFW guidelines had restricted the administration of HCQ to children and pregnant women, the court said that it should not be administered to children below the age of 15 years and pregnant and lactating women.