Region:
Year: 2018
Court: High Court of Kenya at Bungoma
Tags: Freedom from Torture and Cruel, Health care and health services, Health information, Hospitals, Inhuman or Degrading Treatment, Medicines, Right of Access to Information, Right to Health, Sexual and reproductive health
The Petitioner, Josephine Majani, was a woman from a poor economic background, who was in need of maternal care. As she could not afford private medical care, she went to Bungoma County Referral Hospital, a public health care facility that ought to provide free maternal health care following a Presidential directive that was issued on 1st June 2013. The medical treatment which she received at the hospital was substandard. Moreover, she was physically and verbally abused by staff. She did not even receive an acceptable minimum standard of treatment and care as her condition while after the administration of the inducement drug was not physically checked and monitored. She was unable to access assistance and was forced to walk to the delivery room where the facility was unavailable for her. Due to the absence of any alternative, she was forced to walk back to the labor ward unaided. While on her way back she fell unconsciously and delivered her baby on a concrete floor only. After the delivery, she was mistreated, shouted at and was forced to walk to the delivery room for expending of the placenta. The Petitioner alleged the violation of her Right to Health at the hand of National and County Government and the hospital under Article 22(1) of the Constitution of Kenya 2010 (“Constitution”).
The Petitioner sought for the following remedies including but not limited to order for general damages for physical and emotional trauma. An order compelling the Hospital and governments to monitor the implementation of maternal care standards, an order requiring the Hospital through the Nursing Council of Kenya to take disciplinary action against the nurses who violated the Petitioner’s rights, declarations of violation of the Petitioner’s right to healthcare, dignity and information, and a formal apology by the Hospital and national and county governments. The Petitioner also alleged that the Hospital had failed to publicly display its internal complaint mechanism and had thereby violated her right to information.
The High Court of Kenya held that the Petitioner’s right to healthcare had been violated owing to the lack of “proper treatment at the hospital, availability of necessary equipment, facilities, and medication”. She was made to share a bed with another patient because lack of beds, directed to walk to the delivery room (which was fully occupied) without any assistance and insulted by two nurses after giving birth on a concrete floor. The Hospital had failed to comply with Article 43(1)(a) under the Constitution and relevant provisions under international laws, including Article 12(1) of the ICESCR and Article 16 of the Banjul Charter. Moreover, the Hospital had failed to follow the Presidential directive on offering free care for all women giving birth in a public health facility issued on June 1, 2013.
The Court held that the Petitioner’s fundamental right to dignity was violated which is inherent in human beings by virtue of Article 28 and 29 of the Constitution, Article 5 of the Banjul Charter and Article 3(1) of the Maputo Protocol. The Petitioner was forced to give birth in an open place where third parties could watch and her image was captured on video. Moreover, the video captured the image of two nurses shouting at her. The Hospital and nurses did not respect and protect the Petitioner’s inherent right, i.e., right to dignity but humiliated her. They infringed “her dignity as a woman and as a member of the human race”.
The Court held that the Petitioner’s right to information was not applicable in this case because both the facts on record and the Petitioner’s testimony did not indicate that any necessary information was not disclosed to her. The Court also held that the national and county governments failed to establish policy guidelines to effectively implement laws and the presidential directive on free maternal care based on recent reports on healthcare services in Kenya, therefore violated “our own very Constitution and International instrument that we have acceded to as a country”.
The Court directed and ordered that a formal apology be made to the Petitioner by the Hospital and the three nurses. It awarded damages of Kshs. 2,500,000 (approximately 24,789 USD) to the Petitioner to be paid by the national and county governments.
“The respondents failed to avail the basics; drugs and cotton wool are basic provisions in any healthcare and to require the Petitioner and other poor women to purchase basic necessities in a public facility where health care is anchored on the Constitution and where a Presidential directive was specific on the provision of free maternal care is nothing short of violation of a basic rights.” Para 58
“The petitioner certainly did not deserve cruelty and abuses meted on her. The nurses as healthcare providers owe a duty of care to their patients at all times, theirs is a calling to serve humanity in vulnerable circumstances. What the petitioner required was understanding and compassion at the times.” Para 62