Holding patients over bills tantamount to detention without trial, says expert

February 20, 2019 6:31 pm
Although hospitals have always denied reports of the existence of management-sanctioned detention policies, dozens of cases have been documented in the media/FILE

, NAIROBI, Kenya, Feb 20 – Detention of patients in hospitals for non-payment of medical bills borders on imprisonment without trial, a legal expert says.

According to a Nairobi-based lawyer, Charles Madowo, the prevalent practice violates essential rights and fundamental freedoms, including the requirement under Article 49 of the Constitution that persons are produced in court within 24 hours of arrest.

“It is absolutely and utterly illegal. It is false imprisonment because human beings are not goods that you can lien. When I owe you money it is a civil offence; there’s a court of law… take me to court,” he told Capital News FM on Wednesday.

Madowo who offered pro-bono services to Boniface Murage who was arrested and arraigned following a botched attempt to smuggle his month-old daughter from Kenyatta National Hospital (KNH) after he failed to clear a Sh56,937 hospital bill said hospitals need to explore legal avenues to secure payments for medical services.

“The hospital has a right to be paid for services it provides but if a party is aggrieved due to non-payment they then should move to court and charge patients for obtaining services by false pretences and get a lawful order to detain the patient,” the lawyer who specializes in corporate and intellectual property law explained.

A 2017 study by the Royal Institute of International Affairs – Chatham House – listed Kenya among African nations where hospital detentions were significantly high – Murage’s case reigniting public debate on the practice treated with utmost secrecy in most hospitals.

Although hospitals have always denied reports of the existence of management-sanctioned detention policies, dozens of cases have been documented in the media.

In August 2017 for instance, a patient admitted at KNH jumped off the seventh floor of a hospital block after he was detained due to inability to clear a medical bill. Maurice Chege died on the spot.

In the latest case of Murage, the 22-year-old father concealed his month-old baby in a carrier bag while attempting to escape a weeklong detention at KNH after the hospital declined to release his child due to non-payment.

Murage was handed a three-month suspended sentence on Tuesday after spending a weekend in police custody following the failed attempt.

Despite wide condemnation by human rights agencies and global healthcare policy makers, hospitals have continued to hold patients long after they’ve been discharged by doctors.

“A lot of these detentions are illegal and contrive national and international law by locking up people without charges sometimes for months on end. I would say the greatest numbers are in Nigeria, DRC, Cameroon, Zimbabwe, Kenya, Ghana, and even in India and Pakistan,” Rob Yates, the head of Universal Health Coverage Policy Forum at the Centre on Global Health and Security told Chatham House’s podcast in March 2018.

According to Yates, the practice of detaining patients was particularly widespread in countries where healthcare is underfunded.

He also attributed the trend to a donor framework that required developing countries to charge medical fees as condition for loans and grants.

In Kenya, healthcare funding remains way below five per cent of national budget despite the country’s commitment to an African Union declaration that sets the target for healthcare financing at 15 per cent of national budgets.

“This practice is common in countries that have a high proportion of health financing raised through healthcare user fees which also relates to countries that tend to under-finance their health systems,” Yates explained.

“Public financing is very low so the financing burden in pushed to households,” he argued.

According to Kenya National Commission on Human Rights (KNCHR) Vice Chairperson, George Morara, mismanaging of recourses allocated for healthcare is a key factor impeding the attainment of universal healthcare.

Morara told Capital FM News on Wednesday plunder of public funds coupled with under-funding of the health sector has contributed to high cost of medical services in the country.

“I don’t see progress in a healthcare budget that has remained stagnant at four per cent of national budget for the longest time. Progressive realisation of the right to healthcare means that we incrementally improve resource allocation towards healthcare even as we ensure the resources are utilized as planned,” he said.

Morara dismissed claims that policies by donor agencies requiring hospitals in developing countries to charge fees for medical services had contributed to detention of patients as countries go out of their way to win the confidence of donors.

“The donor framework was to cure the moral hazard where people would expect free services. Unfortunately, it has ended up targeting the poor of the poor and it clearly is not working well,” he said.


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