The Bombay High Court’s Nagpur bench has directed the state government to undertake rapid antibody tests with available reliable kits provided by Indian companies since the Indian Council for Medical Research (ICMR) has recognised the utility of such tests for the surveillance and prevention of COVID-19 pandemic. It also directed the state government to place on record the steps proposed to be undertaken to conduct rapid antibody tests with the reliable kits available with it.
“This becomes all the more significant, considering that the results of the rapid antibody tests are said to be quick and, hence, of assistance to the state government in deciding its strategy to deal with areas where there is rapid spread or apprehension of the rapid spread of COVID-19,” the high court said.
A single-judge bench of Justice Manish Pitale Thursday heard, through video-conference, various pleas, including public interest litigations (PILs) seeking reliefs and medical facilities in the wake of the pandemic.
On April 8, the high court had said it would be necessary for the Union Health Ministry to consider whether it can direct authorities to conduct rapid antibody tests. The court had noted that procurement of rapid test kits has been made by the Centre in parts, however, their use has been put on hold in view of divergent results of sample tests.
On April 24, the state government said it has requested the ICMR for more tests kits and will seek an additional supply if required by the local bodies.
Justice Pitale Thursday issued directions to the state after government lawyers, S Y Deopujari and D P Thakare, submitted that it had received 71,000 rapid antibody test kits for distribution in COVID-19 hotspots. However, on April 20, the director of Health Services, Pune, through a letter had communicated that the kits should not be used till further orders, and that allotment of kits was not undertaken as per ICMR directions, Thakare said.
Advocate Tushar Mandlekar, representing the petitioners, said that the ICMR communication of April 27 to chief secretaries of all states stated that the rapid test kits of two Chinese companies ought not to be used and they will be returned to the suppliers. “The April 27 letter did not disclose any policy decision of the ICMR to do away with rapid antibody tests,” Mandlekar said.
Assistant Solicitor General Ulhas Aurangabadkar, representing ICMR, said its decision did not indicate any policy decision to stop rapid tests. ICMR submitted, “Rapid antibody tests could certainly be undertaken for the purposes of surveillance, although the best test for diagnosis of COVID-19 continued to be the RT-PCR swab test.”
In view of submission by ICMR, the Nagpur bench of the high court said the state government could not refuse to distribute reliable rapid test kits.
In the order, Justice Pitale noted, “This court is of the opinion that state is not justified in refusing to distribute the rapid antibody test kits and not undertaking the rapid antibody tests for surveillance. In view of the imminent danger of an uncontrolled spread of COVID-19, surveillance could certainly be an important part of the strategy to control such spread of COVID-19.”
The court further observed that the list of organisations, providing such kits, also includes Indian companies and said that kits provided by them can be used by the state government. “In view of ICMR letter, the state government can certainly undertake rapid antibody tests using kits of companies other than those stated (Chinese companies), because in respect of the specifically named two companies, the test kits were found to be unreliable,” the court noted.
The bench directed the state government to undertake rapid tests with available reliable kits and file a response stating the steps proposed to conduct them across Maharashtra.
On Thursday, the court also asked the Centre and the Maharashtra government to seriously consider the issue of undertaking RT-PCR tests on a priority basis for its frontline staff, like doctors, health personnel and police.
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