22 June 2011

Kenya: How Legal Gaps in New Laws Make It Difficult for Patients to Enjoy Rights

It is your right to get quality medical attention regardless of the health facility you visit and your financial ability in case of an emergency. However, in cases that are not an emergency, this right is limited by your finances.

The Kenya Medical Practitioners and Dentists Board CEO Daniel Yumbya says failure to understand basic patient rights has led to unnecessary confrontations between the public and health workers.

"You have seen Press reports that patients were turned away from a health facility because they did not have money to pay for the services. In a case that is not an emergency, a patient should be prepared (to pay) before seeking healthcare from private facilities since they rely on their own revenue to meet costs," he says.

After one's condition is stabilised, a follow-up to assess the patient's ability to pay for services at the facility is done. In situations where patients are unable to meet the costs in a certain facility, they are transferred to a hospital whose charges are within their means.

Patients' rights include the procedures that should be followed to ensure that the interests of a patient are protected regardless of the type of health facility one visits.


All patients are entitled to this right. Any information disclosed to a medical practitioner should be kept confidential.

The description of confidentiality, according to the board, extends to the medical circles.

The principle is a core component of the doctor-patient relationship. However, doctors are allowed to breach confidentiality of a patient suspected to have committed a crime and seeks medical attention such as gangster in search of treatment for injuries sustained in a shoot-out. However, an explanation is required to justify the health worker's action.

In some cases, patients keep off health facilities when they get infected with sexually transmitted infections because they feel embarrassed, consider their condition confidential and they fear exposure.

However, every patient has the right to give consent, either explicit or implicit, to a health worker before any form of medical examination is conducted on them.

Expression of consent can either be written or verbal. In the case of minors, such consent is given by parents or guardians."Most patients understand that you are required to give consent before major procedures like surgery are carried out. It is basically for any procedure," says Dr Yumbya.

According to the Kenya Medical Practitioners and Dentists Board, implicit consent means that a patient undergoes routine procedures suggested by a doctor such as taking clinical history and treatment.

For consent to be considered valid, it should be free, voluntary and witnessed by a third person.

But in an emergency, medical regulations allow for the normal procedures of obtaining consent to include approval of relatives, guardians, next of kin or an independent senior doctor.

Minors, patients with a mental illness and the elderly constitute groups that can have consent for their medical examination granted by others on their behalf.

Even though the law does demand that women seek consent from their spouses to access family planning, the issue remains thorny as a result of culture and religion. Nevertheless, women risk and make independent decisions regarding the services. "Provision of these services needs to be tagged with counselling and education to emphasize that a woman has a right to reproductive healthcare. Maternal healthcare services expose women to family planning services that are of benefit to them," says Dr Sobbie Mulindi, deputy director of the National Aids Control Council.

Second opinion.

After a medical examination, it is the patients' right to know the status of their health.

In case a patient doubts the results of the medical examination, he/she has the right to seek a second opinion from another doctor whether or not they inform the previous doctor.

According to the Constitution in the Bill of Rights, all Kenyans have the right to quality healthcare. However, full benefits of this provision have not been achieved due to the many regulations guiding operations of public and private hospitals.

For example, a poor patient can access treatment at a private health facility only during an emergency before being moved to an affordable facility .

"The right to quality health care is hard to implement since it does not say who should compensate you when you seek healthcare from a private facility. There is need for a national health insurance scheme that will enable everyone to access healthcare," says Dr Yumbya.

As an institution that ensures health workers carry out their duties according to set medical ethics, the Kenya Medical Practitioners and Dentists Board also handles patients' complaints in situations they feel that their rights have been compromised while seeking treatment.

But the board has been criticised for failing to rein in errant health professionals.

Dr Yumbya disagrees. He says such views are due to misconception about the duties of the board. "We are not a court that awards monetary compensation. Our mandate is limited to taking punitive measures on a member who is found guilty," he says.

This is either through deregistration, suspension of licences, admonishing or putting the doctor on probation. Health practitioners are only deregistered for gross professional negligence.

Since it was established in 1978, the board has not deregistered any member. Suspension of licences remains the most preferred action. In the past decade, 570 cases have been lodged with the board but only 280 have been finalised.

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