GROUP 2.

Y3 S1.

NAMES OF GROUP MEMBERS.

EUNICE OYUNDI. L250/18352/2019.

RODNEY AMENYA. L250/18227/2019.

NAHASHON MBURU. L250/18330/2019.

MARK SUMARE. L250/18276/2019.

NICKSON KIPKIRUI. L250/265/2019

Detention of patients and bodies in hospitals due to lack of payment of medical bills

Q1. What is the position of the law.

[Link]- introduction and constitution.( Articles 24, 28,29,39,41,43)

Health detention practices is the refusing to release either living patients or deceased patient's
body due to inability of the family members to pay the hospital Bills.

According to section 2 of the Constitution of Kenya 2010, the the Constitution is the supreme
law of the republic and binds all persons and state organs at both level of government. Detaining
patients due to failure of of payment of hospital bills goes against their constitutional rights
which include; Right to human dignity (art. 28), Right to Freedom and Security of Persons
(art.29), and Freedom of movement and residence (art.39).

Article 24(1) clearly states that fundamental Freedom in the Bill of Rights shall not be limited
except by law. A High court judge Lady justice Wilfrida Okwany clearly stated that there was
no law that provided that failure to settle hospital Bill would result in detention of patients. This
elaborates well that this practice of hospital is illegal and against the article 24(1) of the
Constitution.
However before we put all blame to hospitals we should also look at the situation in a different
angle. For example why do they detain? As we can see both right to conduct business and make
profit and the right to be treated with dignity are all recognized by the law. The main reason for
detention is to recover money used for treatment. It's easy this way since relatives of the patient
would be on toes to look for money for their patients to be released unlike when their person is
out of hospital. The hospitals has employees who depend on this Money as their salary.

Article 41 gives workers right to fair remuneration and a reasonable working conditions which
needs enough money from hospital department in order to be achieved. At the same time the
hospitals need not to break the fundamental right to freedom of patients as provided in article 29.
If patients are released to pay by other means they may delay payment hence hospitals might go
bankrupt fail to pay their workers and buy equipments needed for treatment. When this happens
health workers may exercise their right in article 41(d) and strike which will at the same time
break the constitutional right of other patients in article 43 right to health. Here we see there is a

conflict of laws hence law not being stable. As to what should be done as as recommended at the
end of the discussion in thus paper.

2. Nahashon.

International law.

Detention of patients and bodies is a common phenomenon in countries that have a major gap in
their health funding system and that have little or no implemented health insurance. Kenya has
ratified various international instruments vide article 2(5) and (6) of the constitution, that have a
substantial touch and persuasive effect on the subject matter. These instruments include;

a) World Health Organization Constitution

This constitution defines health as the state of complete physical, mental and social well being
and not merely the absence of disease or infirmity.

b) International Covenant on Civil and Political Rights (ICCPR)

Art. 11 continues to state that “No one shall be imprisoned merely on the failure or inability to
fulfil a contractual obligation.”

c) Universal Declaration on Human Rights (UDHR)

Art. 9 of the UDHR stipulates that, “No one shall be subjected to arbitrary arrest, detention, or
exile.” Art. 25 further provides that, “Everyone has the right to a standard of living, adequate for
the health and well being of himself and his family which include food, clothing, housing and
medical care.

d) The Committee on Economic Social and Cultural Rights

General comment no. 14 states that: “Payment for health-care services, as well as services related
to the underlying determinants of health, has to be based on the principle of equity, ensuring that
these services, whether privately or publicly provided, are affordable for all, including socially
disadvantaged groups”

From the above, it is clear that detainment of patients by hospital violate the international law on
grounds that it inflicts psychological trauma to the detainees as well as posing fear to others who
may require medical attention but due to fear of being detained, fail to seek the required medical
attention and therefore, discriminatory in terms of economic status of individuals.

[Link]- case laws

In the case of Emmah Muthoni Njeri V The Nairobi Women Hospital ,petition No. 352 of 2018,
Emmah Muthoni Njeri who is the petitioner was slapped with a bill of Ksh 3.1 million. The
hospital went further ahead to detain the petitioner for a period of six months and slapped her
with Ksh 4 Million on the additional charges for the period she stayed in hospital. The high court
of Kenya found the detention to be unlawful by stating:
 “ In reliance on the cited decisions, I find that the unlawful detention of the petitioner
for failure to pay the hospital charges violated her dignity, right to freedom and security of
the person, and the right to freedom of movement”

The court awarded Ksh 3 Million as general damages to the petitioner .

In the case of Gideon kilundo & Daniel kilundo Mwenga v Nairobi Women's Hospital (2018)
ekLR, the petitioner sued the respondents for detaining his father over the non payment of Ksh 1
million which was the hospital bill. The Son claimed that the detention was unlawful,
unconstitutional and an infringement to the rights of the patient. According to Justice Okwany, it
is a violation of a patient rights when an hospital refuses to release a patient due to the failure to
settle the hospital bills. She also added that there is no law that provides for the detention of
patients in hospital for the failure to settle the hospital bills. In her decision, the lady justice
agreed with the submissions of the petitioner and ordered for the release of the patient.

Q2. What recommendations do you make.

4. Mark
The government to come up with national health medical insurance scheme this is to provide
ease access to health care for all Kenyans. This will ensure that Persons who are poor and unable
to pay hospital bills are not detained in hospitals. Such a measure will also ensure that all
Kenyans shall have an opportunity to good health care at both public and private hospitals.
Moreover, such scheme will also enable hospitals compensate bills from patients who shall not
be in a position to pay their bills. Such will therefore ensure a smooth relationship between the
patients and hospital therefore such conflicts shall not arise any more.

In doing so, the government will have put the interest of its citizens of all capacities into
consideration and hence forth all persons will have an opportunity and access to health care.
Parliament to develop a law that imposes a penalty on hospitals that unlawfully detain patients
and bodies due to failure of payment of medical bills. This shall be key in ensuring that the
rights of patients are protected as per article 29 of the constitution which provides that everyone
has freedom of movement. This is in contrast as there is no any law in the constitution which
gives any provision of detainment of patient due to failure of payment of medical bill as per
Lady Justice Okwany.

Therefore, existence of a law in the constitution of such a nature shall be of importance in

5. Nickson.

C) the government to come up with specific funds that help to cater medical Bills for the
marginalized people who cannot afford huge bills by any means. For example to set aside funds
to cater for medication of those who don't have families like accident victims with unknown
identities, those poor families who can only afford less than a dollar a day.

d) Enrollment conditions of the existing health condition scheme.