Discharged but confined in hospitals; deceased but detained in mortuaries. These are the prevalent harsh realities facing families unable to clear medical or mortuary bills. The situation is an infringement on human dignity and basic freedoms as enshrined in Articles 28, 29 and 39 (1) of the Constitution of Kenya.

Over the years, this topic has been the subject of extensive discussions among the public, in Parliament, and within judicial circles. On 25th September 2018, in the Constitutional and Human Rights Court, Lady Justice Wilfrida A. Okwany ruled that the detention of a patient due to unpaid medical bills is unconstitutional as it is not a method of debt recovery within the country’s legal system. In her judgment, she raised the question of how long this arbitrary detention would be effective if not but a vicious cycle set up to frustrate genuine citizens especially where an undertaking to eventually pay the bill is drawn up. With Article 24 of the Constitution in play, the courts have a role to scale what would be just and equitable to all parties involved in such disputes.

There have been attempts to illegalise the detention of patients over medical bills. In 2018, Legislators Mohamed Ali and Jared Okello motioned to have the government compel public hospitals to forfeit all unpaid medical bills accrued by patients that do not survive their ailments. Mr. Okello also moved the House to outlaw the detention of patients due to unpaid bills. In asserting Article 43 of the Constitution, the lawmakers argued that it is within the citizens’ rights to attain the highest standard of healthcare and that the State ought to provide social security for those vulnerable. Mr. Okello’s proposed amendment to the Medical Practitioners and Dentists Act (Cap 253), sought to have members of staff and medical facilities fined up to Ksh.5 million or serve a jail term of up to five years for the detention of such patients.

The latest venture by Kirinyaga Woman Representative Njeri Maina seeks to amend the Health Act (2017) to criminalise the detention of patients and corpses in hospitals over unpaid bills. If amended, the law will provide for a Ksh. 1 million fine to facilities that continue with this disgraceful trend.

In December 2022, Nairobi Governor Johnson Sakaja sanctioned the release of patients held in the county’s hospitals over unpaid bills in partnership with the Co-operative Bank of Kenya. This, despite a great gesture of leadership and social justice, may not be a long-term solution as every day, there are new patients being admitted to hospitals with the hope of being treated with dignity but with the fear of accruing bills they cannot pay. 

In an article published on AllAfrica and Amnesty Kenya’s website, Dr. Stella Bosire and Dr. Ifeanyi M. Nsofor look at the situation of detained patients in medical facilities in Kenya and other African countries such as Nigeria, South Africa, Cameron, Democratic Republic of the Congo, Ghana, Zimbabwe and Uganda. 

In their findings and as per a Chatham House study, there have been reported cases of dehumanizing behaviour by members of staff of these facilities ranging from sexual assault, verbal abuse, and physical abuse noting that such patients are not provided with adequate space and utilities for their time there with some even being chained to lavatories. 

Such gory situations leave not only the patients but also their relatives with indescribable pain and mental deprivation thus eventually affecting their quality of life and in the long run, negating the contribution to the state’s economic and social growth. Among the numerous contributors to this is the poor public financing of healthcare as many citizens in Kenya and Africa at large pay out of pocket for their medical needs. Looking at the recommended suggestions by the two doctors in the article, it is important to seek how feasible and long-lasting they are.

Educating the public on health insurance

Being that most members of the public pay for their medical bills out of pocket and when the need arises, it is critical that the advantages of investing in one’s health by securing medical insurance are taught through government and/or donor outreach programmes so that even those in remote areas are informed on the necessity for such security.

On the flip side, however, is that government insurance policies such as NHIF are flawed to the extent that citizens refrain from procuring such services despite the law providing for it where one is employed. There have been cases of this cover not aiding in the payment of bills as far as some diagnoses go or even being denied admission in some medical facilities due to the lack of a preferred medical cover.

As a fault of capitalism, bureaucracy in the healthcare industry has led to the disregard of the Hippocratic oath and principles of Beauchamp and Childress.

Addressing the various social determinants of health

There are several factors that contribute to one’s health and healthcare. Is economic stability attainable if the healthcare facilities are not of substantive standard or simply cannot be accessed due to a lack of quality education to have well-trained medical staff and a society that is informed on the need for medical attention and care? How can we be guaranteed of great health while we float in a pool of inadequate housing, a lack of clean water and unreliable food security?

Are some of our societal beliefs barring us from receiving adequate healthcare? Based on ethnicity or religion, there are citizens that decline to undergo medical procedures such as organ transplants, contraception and even donating blood.

All these factors are intertwined with each other and the improvement of one has a domino effect on another within our society.

Establish equity funds

Medical facilities will be required to conduct due diligence so as to ensure that only needy patients get a waiver on their bills. The regulation on this will need to be precise and detailed to avoid any unnecessary losses.

In this regard, Kenya ought to set up an equity fund for needy patients to protect and cushion medical facilities that waive unsettled bills. A benchmark example would be the Road Accidents Fund in South Africa which covers all users of South African roads, citizens and foreigners, against injuries sustained or death arising from accidents involving motor vehicles within the borders of South Africa. The cover entails personal insurance to accident victims or their families, and indemnity to wrongdoers. The country’s fuel levy supports this fund, which most would consider justifiable.

Establish and promote mainstream healthy lifestyles

In a bid to promote healthy lifestyles, we have seen our leaders cycle or go for runs in the streets, however, despite the intention being positive, the outcome is rather the opposite. Such images are merely photo-ops for politicians to drive a narrative that only a certain class of citizens can enjoy as a result of the lack of cycling lanes, working street lighting, surveillance and effective security measures. 

Some middle-class and almost all lower-class citizens are unable to access such “luxuries” and their leaders could be selling them pipe dreams tainted with insecurity and potentially fatal accidents. 

We have seen local health centres transforming into makeshift gyms, however, these options are either too costly for the locals or the donated equipment proves insufficient to cater to all the members of the community interested in utilising them. 

Those who have been put in places of power and influence need to realise that it is impossible to egest what is yet to be digested.

Criminalise detention by hospitals and mortuaries

As earlier discussed, this proposal is in the House and may be passed. However, to criminalise the detention of patients and/or corpses with unpaid bills means there must be a prosecution. The courts may then be tasked with numerous cases which creates a myriad of issues such as delay of justice.

It would then be worthy to consider a tribunal dedicated to issues of medical nature and those surrounding the industry at large. This would also ensure that experts in medical law are involved in resolving such matters.

Budget allocation to healthcare

With the soon-to-be-read budget, healthcare has previously been allocated a meagre 9 percent of the national budget and this has proved to be insufficient. It would therefore be of extreme need that the government considers an increment in the allocation this year to ensure that all the medical needs and proposals put forward for the betterment of its citizens are sustained.

Public hospitals ought to be of a great standard to serve all, even our leaders. It is then key to consider a reconstruction of the medical facilities and policies in the country as all citizens matter.