The Laws That Guide Healthcare Workers: A Powerful Message to the Next Generation

As a legal practitioner for the past 36 years, my brief today is to prepare you for the world you are about to transition into – a world where medical science and the law often intersect. The topic of my address, “Legal Caveats in the Practice of Medicine in Kenya,” is both timely and essential. It is very important to know the law, understand it, and abide by it, because ignorance or disregard of legal obligations can easily turn the law from a shield of protection into a tool of sanction.

In Kenya, medical professionals must navigate a complex legal landscape governed by several key instruments which define the standards of medical practice, regulate professional conduct, and safeguard patients’ rights within the healthcare system. These legal instruments include:
i. The Constitution of Kenya (2010)
ii. The Health Act (2017)
iii. The Medical Practitioners and Dentists Act (CAP 253)
iv. The Data Protection Act (CAP 411C)
v. The Mental Health Act (CAP 248)
vi. The Nurses and Midwives Act (CAP 257)
vii. And the recently enacted Universal Health Coverage laws, which are the Primary Health Care Act (2023), the Facility Improvement Financing Act (2023), the Digital Health Act (2023), and the Social Health Insurance Act (2023).

Together, these laws not only establish the framework for quality healthcare but also define the legal responsibilities and liabilities of every healthcare professional. They embody the established principles of medical negligence, outlining the duty of care owed by practitioners to their patients, and emphasizing the essential requirements of consent and patient confidentiality – commonly referred to as the “3C’s” which I will briefly address as follows:

The first legal caveat concerns the duty of care. Every healthcare worker owes a duty to act with skill, diligence, and caution in managing patients. Negligence arises when that duty is breached, leading to harm or injury. Courts have often emphasized that while medicine is not an exact science, professional judgment must always be exercised responsibly.

I now wish to highlight to you some of the provisions of our Laws on the mandatory duty of care owed to patients:
i. Article 43(1)(a) of the Constitution of Kenya guarantees the right to the highest attainable standard of health, including reproductive health care and thus establishes the foundation for the duty of care;
ii. Sections 4 and 5 of the Health Act (No. 21 of 2017) set out the values, principles and rights of the patient in health services, including respect for human rights, dignity, equity, ethics, and the obligation of every health professional to provide care in accordance with professional standards;
iii. Section 7 of the Health Act further imposes a duty of care to the individual and prohibits the denial of such treatment under any circumstances;
iv. Sections 6, 20 and 22 of the Medical Practitioners and Dentists Act (Cap 253) require registration, licensing and professional discipline of medical practitioners, thereby ensuring that only qualified persons deliver medical services consistent with the duty of care;
v. Sections 7 and 8 of the Nurses and Midwives Act (Cap 257) similarly mandate licensing and registration of nurses and midwives, while Sections 18A and 18B empower the Nursing Council to enforce professional standards and discipline to maintain quality and accountability in care; and
vi. The recently enacted Primary Health Care Act (2023) closely mirrors these obligations by emphasizing continuity of care, quality, and respect for patient rights in all levels of care, thereby strengthening this duty.

A case in point to illustrate the consequences of not exercising a duty of care is the recent Kenya High Court case of Michubu (Legal Representative of the Estate of Agnas Kendi) v St. John’s Hospital Tigania. In this case, a woman who had visited the hospital complaining of abdominal pain was diagnosed with intestinal obstruction and prepared for surgery. Following the surgery, she was discharged despite developing post-operative complications (vomiting, abdominal distension, and partial intestinal obstruction). Six days later, an emergency surgery revealed that a loop of her duodenum had been mistakenly stitched to the abdominal wall, causing a large perforation and fatal peritonitis and eventually her death. Her brother, Jackson Michubu, sued for medical negligence, alleging that the hospital’s carelessness led to her death. The High Court agreed, finding that the doctor had breached the duty of care and that the hospital (as his employer) was vicariously liable. The court awarded Kshs 11,412,850 to the deceased’s estate. This case vividly illustrates that a clear departure from standard care can have tragic consequences and result in legal liability.

The second caveat involves informed consent. Before undergoing any medical procedure, a patient must fully understand its nature, risks, and implications and consent to the same. Consent must be given voluntarily, and the patient must be competent to give it.

In this regard:
i. Section 9(1) of the Health Act (2017) expressly provides that every patient has the right to informed consent before any treatment or procedure is carried out. The same provision also provides for the exceptions under which consent does not have to be sought;
ii. Section 9(2) of the same Act mandates a healthcare provider to take all reasonable steps to obtain the patient’s informed consent;
iii. Section 38 of the Mental Health Act provides that every health care provider shall, where the person with mental illness has attained the age of majority, inform the person with mental illness of the right of that person to choose an appropriate form of treatment; and obtain written consent from that person before administering any treatment; and
iv. Section 31 of the Digital Health Act (2023) reinforces that a healthcare provider must obtain explicit consent before processing or sharing any patient’s health data, subject only to lawful exceptions such as emergencies or statutory requirements.

However, there are exceptions to the requirement of consent and these include where the patient is being treated in an emergency situation, where failure to treat the patient will result in a serious risk to public health; or where any delay in the provision of the health service to the patient might result in his or her death or irreparable damage to his or her health and the patient has not expressly, or by implication or by conduct refused that service.

The third caveat is patient confidentiality. Information regarding a patient’s health, diagnosis, or treatment must never be disclosed without lawful authority or patient consent. Breach of confidentiality is not only unethical but also a criminal offence, punishable by fine or imprisonment.