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COVID testing: Delhi HC confronts AAP govt on issue of pregnant women

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A genuine human problem has been made into a bureaucratic nightmare… What kind of society are we living in?’

The Delhi governments confusing rules on who would be tested for COVID before being admitted to a hospital has led to a strenuous situation for pregnant women in the last stages of labour. While the instant tests can yield inconsistent results, the detailed tests are time consuming and the lady in question may not be able to wait that long. Also, the initial notice of the government, which talked about mandatory tests for people in high risk category, did not include pregnant women, while their status report did. The Delhi High Court has not taken this lightly.

Today (July 9) the court confronted the AAP government for not clarifying whether every pregnant woman who goes to a hospital for delivery or urgent treatment is required to undergo COVID-19 test.

The court also stated that if asymptomatic pregnant women are required to get tested for COVID before getting admitted then the time taken for sample collection and declaration of results should be kept at the minimum.

A division bench of Chief Justice D N Patel and Justice Prateek Jalan made the observations while hearing a public interest petition by a lawyer seeking expedient testing and declaration of results and that priority to be given to test results of pregnant women. The court stated that the Delhi government has been given four to five opportunities since the filing of this PIL, but it has not clarified this aspect.

“A genuine human problem has been made into a bureaucratic nightmare. It is totally inexplicable. How long do we wait (for clarification)? Four to five opportunities have been given to address the issue since filing of the petition,” the court said.

The Court also said that the Delhi government officials should understand that when a pregnant woman goes for delivery or surgery, they cannot wait for 48 hours for a result and sometimes they go at the last moment.

“As per your status report, they will be kept in isolation till declaration of results without a family member close by. What kind of society are we living in?” the court remarked.

The court took note of the July 5 order of the Delhi government whereby the government has said that all “at-high risk ,” such as aged people and those suffering from serious ailments like cancer, need to undertake the Rapid Antigen Detection Test (RADT) before being admitted in hospital for treatment of non-COVID ailments.

The court stated that the Delhi government’s July 5 order and their status report were totally contradictory as the order didn’t include pregnant women while their status report did. Another contradictory aspect pointed out by the court was the requirement of undergoing RADT by pregnant women. While the Delhi government advisories said that all pregnant women have to undergo testing before being admitted, in court the government stated that asymptomatic pregnant women do not have to undergo testing as a pre-condition for being admitted.

The court has therefore directed the Delhi government to correct these contradictions and clarify if asymptomatic pregnant women have to undergo COVID-19 testing before being admitted. If they have to get tested there test results should be given soon.

The bench said that as per Delhi government status report, RT/PCR results are available in 4-5 hours. If that be so, pregnant women should not be made to wait for 24-48 hours for it.

The court has made several observations and issued directions in the present petitions regarding pregnant women. The following are in brief the submissions and observations made during the previous Court hearings:

a)    High Court on June 22 had observed that 5-7 days cannot be taken for getting COVID-19 results for pregnant women prior to admitting them in hospitals for child-birth. The government had asked the ICMR and Delhi government to expedite it. The Counsel representing the Delhi government requested the Court for more time to get further instructions to file an affidavit.

b)    The Delhi High Court on July 1st was then informed by the Government of NCT of Delhi the use of Rapid Antigen Testing at hospitals has been expanded to ensure availability of quick test results and take care of difficulties being faced by patients, including pregnant women.

Advocate Vaibhav, appearing for the petitioners made some submissions:  Pregnant women were not being given priority in testing. Secondly, the antigen testings, in which the results are received in a few hours are not available to everyone. The regular tests, whose results are received in 3-4 days are mandatory even when a person is found negative after an antigen test. If person is found negative, then he will again be tested in the regular way RTPCR, to rule out infection. Hospitals are still only conducting the regular ITPCR tests, and people are kept in isolation wards or with other suspected cases, till the result comes, which increases their risk of infection.

Adv Vivek Goyal on behalf of ICMR submitted that its the Delhi government and not ICMR that decided which patients are to be given priority. The Counsel for the Delhi government informed the Court that with regard to admission in hospitals for in-patient interventions including surgery, delivery etc., prior COVID-19 test was not mandatory for admitting pregnant women in hospitals for in-patient interventions, including surgery and deliveries. It was added that in emergent situations, treatment would not be denied for want of test results, the test would be conducted simultaneously with the treatment and if the result come out to be positive, the pregnant woman would then be transferred to a COVID-19 hospital.

The lawyer representing the Delhi government had sought more time to file an affidavit with regard to giving priority to tests of pregnant women. Counsel for GNCTD was given time to get instructions and file an affidavit

c) During the hearing on July 8th petitioner Agnihotri insisted to record the government’s comment that testing would be done as their official notification does not mention this.

On the time take for the procedure, counsel Shobhana Takiar said 48 hours. At this Justice Prateek Jalan wanted a clarification: “Does that include the time from test being taken and results being given? We are not talking to you about symptomatic people, we are talking about all pregnant women who need access to health services. For a pregnant woman who has to go have a baby, and needs to give a test before that, she cannot wait for 5-6 days. We need a compressed time schedule.”

Counsel Takiar said that the alternative was the rapid antigen test, which “will give results in one hour”. This did not seem to satisfy the judge. He asked: “But are the negative results from rapid antigen testing being accepted? This is because that was a concern in the last hearing.”

-India Legal Bureau

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