The Health System

Detention Of Patients for Unpaid Bills Illegal

Quality healthcare is essential to every Kenyan as enshrined in the Constitution of Kenya 2010. However, this has remained a mirage in the face of many Kenyans who, in several occasions, have been deprived of their rights to prompt and quality medical services. Poor Kenyans have experienced the wrath of failure to pay for health services; where they are either denied health services or get treated but detained until they clear their bills. 

This does not end there because even morgues hold dead bodies for unpaid hospital and/or morgue bills.

In 2017, August, for example,a patient committed suicide at the Kenyatta National Hospital  after he was unable to pay the medical expenses. This happens even though the Constitution of Kenya, 2010 spells out clearly that every Kenyan is entitled to quality health care. In April 2019 Kenyatta National Hospital freed 258 patients detained over debts. KNH board chairman James Kamau however denied the media reports and said the patients had not been detained “as widely reported by the media”.This is despite the video footage that had been shared before showing that they were detained and narration by the same patients. According to Dr Mwangi, “The patients had been discharged but had not completed clearing.”

Most recent, a lady died in Vihiga County after spending minutes pleading with hospital staff to attend to her  bringing to light the country’s poor emergency response system.

Article 43 (1a) of the Constitution of Kenya, 2010 guarantees every citizen the highest attainable standard of health which includes the right to healthcare services including the right to reproductive health, and the Sub Article (2) states that a person shall not be denied emergency medical treatment. Health and Law experts also argue that indeed no one should be deprived of their health rights.

The Kenya National Union of Nurses, Migori County Branch Secretary, Ms Catherine Tingo argues that albeit it is one’s constitutional right, some health facilities, especially private and faith-based, still detain clients and even deny them services over bills.

She argues that for public health facilities, no one should be detained or denied health service over unpaid bills. For public health facilities, she says, in case one is unable to pay medical debts, the hospital administration is expected to send a team of social workers to assess the background of the person before putting waiver to the cost.

“It is important to send a team of social workers from the respective health facility to assess the client’s background. The team later does a report from which a waiver can be done. This has happened in many facilities and it can work instead of detaining a poor person over bills,” she says.

Ms Tingo asserts that implementation of the right to quality healthcare becomes complicated for the private and faith-based health facilities since these are profit-oriented and would not set free a client who fails to clear their bills.

“Detaining persons or refusing to offer health service is common in private and faith-based health facilities. But this should not be the case. It could be because these are profit-oriented and they argue that clients go to private facilities when they know the costs and cannot later fail to pay the bills,” she states.

What the law says

But does law allow the private and faith-based health facilities to detain clients or refuse to offer them services over unpaid bills?

In a petition No 242 of 2018 in the High Court of Kenya, the Constitutional and Human Rights Division in Nairobi, son Gideon Kilundo and his father Daniel Kilundo Mwenga as petitioners won a case against the Nairobi Women’s Hospital after the son was detained by the hospital over bill of Kshs1.1 million.;ding-patients-over-hospital-bill-illegal-rules-judge

Nairobi’s Women Hospital is one of the private health facilities in the country. The sitting Judge Lady Justice Wilfrida Okwany declared that even though this was a private facility, continued detention of the client was arbitrary, unlawful and breach of Articles 29 and 39 of the Constitution of Kenya, 2010. She argued that Article 29 of the Constitution provides for the freedom and security of every person-and no one should be detained without just cause. In Article 28 of the same constitution, every person has right to have dignity respected and protected. Further, Article 39, provides that person shall have the right to freedom of movement.

According to Lady Justice Okwany, there is no law that provides that failure to pay hospital bill should result to detention.

“I am not convinced that an illegal detention of a patient is one of the avenues for the recovery of a debt within our legal system, because the question that will always arise is for how long the hospital will be expected to hold the patient,” she ruled.

The client was then released even though he had put in writing to settle any outstanding bills and was offered treatment for a whole month and he fully recovered.

The Judge argued that the hospital had the rights to use alternative means of recovering the debts and not by detaining the clients. She ruled, “Although the hospital should pursue other lawful means of recovering the debt other than detaining the patient, the court is of the view that it is not right for people to walk into private hospitals for treatment and expect to walk out without paying a single cent.”

This is the argument put forward by Migori County Attorney, Ms Matiko Mong’era that denying one health service over bills is unconstitutional; while detaining one over such is false imprisonment that is not allowed in any law in Kenya.

“Health services should be timely and quality and no one should be detained or denied this right. Though private hospitals is a different case, but still they can find ways of recovering the debts and not detaining clients,” she says.

She is of the opinion that what ails Kenya is lack of proper implementation of some of the laws and policies that have been put in place.

“Yes, they are in the constitution but certain regulations should be put in place to ensure the execution and implementation of the constitution are done. Finally, the universal health care programme will be of help in some of these scenarios,” she adds.

What Journalists should do

  1. Find out how hospitals that release clients who have not cleared bills recover their money.
  2. Find out if  there are existing regulations to strengthen the constitutional assertions in terms of executions and implementations on matters health.
  3. Share experiences of people who have been detained in hospital due to unpaid bills.
  4. Get data from the hospitals in their areas to know how many people are detained.This will help the journalists to have a strong case and influence policies.
  5. Run TV and radio programmes that educate the public on both public and private health insurance schemes.

By Nicholus Anyuor

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