1.0 Background
The
legislative framework on emergency medical treatment in Kenya is
anchored on the provisions of the Constitution which guarantees every
person the right to the highest attainable standard of health. [1] In
particular, Article 43(2) provides that no person shall be denied
emergency medical treatment. Naturally, in law, given that the
Constitution is only meant to provide broad guiding principles, it does
not expound further on the circumstances under which this right can be
enforced.
Between
2010 and 2017, there was no enabling law to give life to these
constitutional provisions, and as such, health care practitioners were
largely guided by the Kenya Health Policy 2014 – 2030. The Policy defines emergency treatment to include first
aid treatment of ambulatory patients and those with minor injuries;
public health information on emergency treatment, prevention, and
control; and administrative support, including maintenance of vital
records and providing for a conduit of emergency health funds across
government. The policy further provides that “Emergency
health services shall be a part of the referral services and shall be
provided by the nearest health facility, regardless of ownership (both
public and private).”
Relatedly, the 2013 Ministry of Health National Patients’ Rights Charter provides
that every patient has a right to receive emergency treatment in any
health facility. The Charter goes further to state that, in emergency
situations, irrespective of the patient’s ability to pay, treatment to
stabilize the patient’s condition shall be provided.
2.0 Discussion/Analysis
Notably, in May 2017, Parliament enacted the Health Act, which
has subsequently given more clarity and legal direction on the rights
and duties encompassed in emergency care. Section 7 of the Act is
instructive on what constitutes emergency medical treatment including:
(a) pre-hospital care;
(b) stabilizing of the individual; or
(c)
arranging for referral in cases where the health provider of the first
call does not have the facilities or capability to stabilize the victim.
The
Act further states that any medical institution that fails to provide
emergency medical treatment, while having the ability to do so, commits
an offense and is liable upon conviction to a fine not exceeding three
million shillings. Besides medical institutions, healthcare providers,
whether in the public or private sector, also have a personal duty to
provide emergency medical treatment. [2]
Moreover,
the Act instills a critical duty upon the government under section 15
to achieve the following as part of the realization of emergency medical
treatment: First, a duty to develop policies, laws, and procedures, in
consultation with the county governments and other stakeholders for the
realization of emergency care. Second, a duty to ensure that financial
resources are mobilized for uninterrupted access to all health services.
Third, a responsibility to establish an emergency medical treatment
fund for unforeseen situations, and lastly, to provide policy and
training, maintenance of standards, and coordination mechanisms for the
provision of emergency healthcare. It is worth noting, however, that
while section 112 of the Act enshrines an obligation on the Ministry of
Health to enact regulations for the better carrying out of the
obligations under the Act, the National Policy on Emergency Medical Care
in Kenya remains a draft that is yet to be endorsed into law. [3]
From the Kenyan judiciary, there is little jurisprudence that has interrogated emergency medical care. In the 2013 case of LN & 21 others vs Ministry of Health,
the court, in its analysis held that renal dialysis did not constitute
an emergency as the petitioner’s condition did not create a need for
immediate remedial treatment but rather, was an ongoing state of
affairs.
In
the absence of national precedents, several cases can be used to give
guidance on emergency care from the international sphere. First, the
Supreme Court of India has long established a duty to provide emergency
treatment for accident victims, regardless of the ability to pay. This
was declared in the case of Parmanand Katara v. Union of India. [4] Generally,
the jurisprudence from India on emergency care is indicative of the
duty of a hospital to respond positively and admit a patient if they
have facilities for dealing with the condition. [5] Lack
of bed space has been held as not being a justifiable reason for
turning away a critically ill patient whose condition needed to be
stabilized urgently. The medical facility should be able to make
internal arrangements to accommodate the patient if challenges relating
to bed space arose.
3.0 Comparison
Closer home, the 2015 South African case of Charles Oppelt v Head: Health, Department of Health Provincial Administration: Western Cape also
provides useful guidance on the legal duties that arise in emergency
care. These duties include: First, the duty to ensure that a patient is
transferred in time to be treated; second, the duty to ensure that the
patient is given appropriate treatment with the greatest possible
urgency and lastly, the duty to ensure that hospital personnel working
in trauma units are properly instructed. Those who fail to do thus incur
liability.
In addressing the regulatory weaknesses of emergency care in Kenya, guidance may be placed on the recommendations made in the Ruling of
the Medical Practitioners and Dentist Board in the Alex Madaga
Complaint of 2016. The Board noted with concern that to date, there
exist several lacunae in emergency medical treatment that would benefit
from the enactment of an overall emergency care policy at the national
level. The Board recommended that the Ministry of Health, in
collaboration with the Council of Governors enact guidelines that would
regulate: Payment of emergency medical care, particularly in private
hospitals, inter-hospital transfers, and referrals where a hospital does
not have the capacity to offer emergency care; and lastly, regulation,
licensing and operation of ambulances. [6]
4.0 Conclusion
In
conclusion, therefore, the legal duty in emergency medical treatment
can be summarized as follows: First, medical institutions that fail to
provide health care services necessary to prevent and manage the
damaging health effects due to an emergency situation are culpable.
Further, facilities that have systems that are inappropriately designed
and invariably cause a patient deserving of emergency medical treatment
not to receive such treatment, are also culpable. Hospitals that
prioritize monetary security before admission can also be held in
violation of the Constitution as well as the Kenya National Patients’
Rights Charter. The liability of the government, on the other hand,
arises from its duties as stipulated in the Constitution as well as
sections 15 and 112 of the Health Act. Where the government thus fails
to enact policies; mobilize financial resources, regulate, train and
accredit emergency care providers or ensure compliance with already
existing guidelines by medical institutions, then it is liable in law.
This, must, of course, be done in consultation with county governments
and other stakeholders in the health sector acknowledging that health is
now a devolved function.
