State targets private hospitals in compulsory emergency admissions, bans body detention

The government has proposed sweeping legal reforms that will compel private hospitals to admit critically ill patients in emergency situations.

The amendments also outlaw the long-standing practice of detaining bodies over unpaid medical bills.

The proposals are being put forward by Solicitor General Shadrack Mose.

Mose was giving his take on the proposed Health (Amendment) Bill, 2024, that is being considered by the National Assembly.

In a letter to the National Assembly’s Health Committee, Mose is calling for further amendments to the Bill to make it mandatory for all health facilities, public and private, to provide life-saving treatment to emergency cases without demanding upfront payment.

“Clause 3 (f) proposes to amend section 7 of the Act to introduce a new subsection (4) to create an offence and prescribe a penalty for an officer in charge of a public health facility who demands payment prior to providing emergency medical treatment,” Mose's letter to the Clerk of the National Assembly states.

“The proposal applies to public health facilities only. Section 12 of the Health Act imposes a duty on all healthcare providers, whether in public or private, to provide emergency treatment. Therefore, the proposal should be amended to apply to both public and private health facilities.”

Some private health facilities insist on a cash deposit before starting treatment—even in emergency situations.

If passed, hospitals found in violation could face stiff penalties, including loss of licence and prosecution of responsible administrators.

The Bill is sponsored by Kirinyaga Woman representative Njeri Maina.

The State Law Office outlined how private health facilities will be shielded from running into losses.

“To protect the healthcare providers, Section 28 of the Social Health Insurance Act establishes the Emergency, Chronic and Critical Illness Fund to cover the cost of emergency treatment,” Mose argued in the letter dated October 6.

The kitty is directly funded by the national government and is intended to ensure access to quality critical care and manage extensive costs for severe conditions that would otherwise be unaffordable for individuals.

The Bill also criminalises the detention of bodies, terming the act inhumane and a violation of human dignity.

Hospitals often detain bodies of the dead until their families clear the medical bills.

Njeri’s Bill had proposed the amendment of Section 7 to make it an offence and to prescribe a penalty in relation to the detention of bodies by public health facilities. 

But the Office of the Government Legal Adviser wants the amendment to be included in a different provision.

“This proposal is outside the scope of Section 7, which deals with provision of emergency medical treatment,” Mose noted.

“We recommend that this proposal be provided as a separate provision and amended to apply to both public and private health facilities.”

The proposal follows previous attempts to declare the detention of bodies unlawful.

Last week, Justice Nixon Sifuna, in a ruling dated September 23, said it is wrong for hospitals to detain bodies until outstanding medical bills are met.

“There is in Kenya, no law providing for a hospital’s right of lien over patients or over their remains should they die while hospitalised or while undergoing treatment,” the judge said.

“Socially, the detention of bodies by mortuaries and hospitals, for debt claims, traumatises the bereaved families and disrespects the departed. It has in many instances been employed to blackmail, embarrass, traumatise and coerce bereaved families into submitting to the monetary demands by the hospitals.”

A right of lien is a creditor's legal claim or right to hold onto a debtor's property until a debt is repaid or an obligation is met.

In 2018, Nyando MP Jared Okello moved a raft of amendments to outlaw the detention of bodies by hospital management.

“No health institution in the country shall detain or otherwise cause, directly or indirectly, the detention of the body of a patient who died after or during treatment for reasons of non-payment, in part or in full, of hospital bills or any other medical expenses,” the proposed amendments read.

“Patients who have fully or partially recovered and who are discharged or wish to leave health institutions but are financially incapable of settling their hospital bills or other medical expenses shall be allowed to leave the health institution.”

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