Perhaps the most important right is the right to health; of what importance would the other rights be if we are not healthy enough to make use of them? You can’t easily make use of your right to education if you cannot even think clearly due to the epileptic seizures.
However, who is responsible for your health? You cannot only hold the Kenyan Government responsible for the state of your health. Your health depends on various factors, such as the environment where you live; whether there is fresh air, clean water, safe roads, good security, food, whether you have a chance to take enough rest. It also depends on your own choices. There are people who live in a healthy environment, but choose to live an unhealthy lifestyle; they may eat unhealthy, smoke, drink alcohol and decide to sleep late etc. Therefore, we can say that you are partly responsible for achieving your right to health.
The environment may offer you the chance to live a healthy life and to take charge of your health. But in some cases it may hinder a healthy lifestyle, by for example denying you the chance to go to bed in time, or preventing you from going to a professional health provider.
When you miss out on one of the factors that contribute to good health, you need to question yourself as to who is responsible for this. Could it be because you didn’t take the responsibility to take good care of yourself? Did someone choose to deny you this? Or is the Government responsible as they do not provide an environment in which you can fulfill your rights?
Whose Responsibility is it to pay for your Epilepsy Care?
According to Article 43 CoK, you have the right “to the highest attainable standard of health, which includes the right to health care services.”
The right to health includes the right to prevention and cure of diseases, as well as the right to the control of disorders such as epilepsy. It is your right to have available and accessible, facilities which are of good quality.
The Constitution also says that the State shall give priority to ensuring the widest possible enjoyment of this right, considering the current situation for the vulnerable groups or individuals. According to Article 21 CoK, the State has the primary duty to observe, respect, protect, promote and fulfill these rights.
This means that the Government has to give evidence that they have no money before they are allowed to withdraw from their duty. In the case where the government can prove it does not have the resources (which means that it is bankrupt and should get out of office), the court cannot then excuse it. It however needs to give directions aimed at ensuring that the government fulfills its constitutional responsibilities (Articles 20. 1-4 and 23. 3 CoK).
Article 21 does not allow the government (executive, legislature and judiciary) to be excused from its duties.
Access to Care
When you go to a hospital to receive treatment for your epilepsy, you are expected to pay. Most hospitals will ask you to pay first before you receive any consultation and/or treatment. However, when you urgently need care and arrive at the hospital while for example having a seizure, then the hospital has the responsibility to give you treatment even before you pay (in such emergency situations).
When you go to a private hospital and you cannot afford treatment, then they have the right to refer you to a public hospital if you are not in acute danger. The private hospital can only deny provision of treatment without payment when it doesn’t risk your health (Article 43.2 CoK). This means that a person with a status seizure (a seizure which continues unless doctors administer an injection) must be treated by each hospital where they are brought for first aid, even when the person cannot afford this.
- What if I need treatment, but the drugs are not in stock or there is not enough medical staff?
A public health facility may be inadequately staffed or lack the type of drugs you need in stock. The Constitution makes it the duty of the government to ensure that all Kenyans enjoy ‘the highest attainable standard of health’ (Article 43. 1 CoK). This means that it is the government’s responsibility not only to ensure that you receive health care but it must be of the appropriate quality. The quality is measured by such things as availability of health facilities, access to those health facilities, the number of health care practitioners including specialized ones like in the case of epilepsy, availability of drugs and cost.
The government must therefore ensure that all public health facilities are well-equipped, adequately staffed and that all relevant drugs are available at an affordable cost if not free of charge. If this is not the case and the problem is persistent in your local or nearest public health facility, it is important to inquire from the person in charge of the facility why this is so. If the problem continues and an adequate answer or explanation is not forthcoming from the person in charge, you can report the matter to the health administrators such as the District or County Health Officer or Medical Officer for action.
If the problem is not solved, it is advisable to raise the issue with your area representative; such as your County Assembly Representative or Member of Parliament (MP). They, on your behalf, need to follow up the issue with the relevant county or national ministry in charge or raise the issue in the County Assembly or National Parliament as the case may be. Ultimately, through the Constitution of Kenya, you can also sue the health facility, county government and/or the national government in the High Court for failing to adequately staff the health facility and provide drugs which is a violation of your rights (Article 22.1 CoK).
- Who has to pay for the health services you need? Your parents? Insurance? NHIF? Your employer? The one responsible for the fact that you need medical care?
Many people and/or institutions bear this responsibility (as has been seen above). The government has the primary responsibility of ensuring that health facilities, appropriate health and medical personnel and drugs are available to all Kenyans. By providing these, it is in a way, paying for the health services you need. The government must also ensure that these services are reachable, in terms of distance and affordability.
In an attempt of making health and medical care accessible to Kenyans, the government has set up the NHIF (http://www.nhif.or.ke/healthinsurance/). The NHIF membership is open to all employed Kenyans and their dependents. Therefore if you are a member, part or all of your medical costs shall be met through NHIF according to the terms and conditions.
Alternatively, if you have private medical insurance cover, then the company that has covered you should meet the costs, according to the terms and conditions of your cover. If you are a child, then obviously beyond the government, your parents or guardians have the responsibility of meeting your healthcare costs if they can afford it. That is why it is important for the government to ensure that the costs of health and medical care are free or kept at a minimum.Finally, if a person causes you to be in need of medical care, for instance if a motorist hits you with his vehicle, then the motorist should be responsible for your medical care to the extent agreed or determined by a court of law.
- What if the ones responsible do not want to take ownership? What if they say that they cannot afford it?
Where an institution or a person neglects their duty of care, it is important to report them to the relevant authority. For instance parents who willfully fail to provide medical care to their children can be reported to the area Children’s Officer. In their absence, the area Chief or Police can take up this responsibility. If it is a public institution, then those in charge of health in the area such as the Health Officers or Medical Officers should be notified. Ultimately a person, even the government, can be taken to court to explain why they have failed in their duty. If the claim is that they cannot afford it, they must clearly show (and especially for the government) why. This must be looked at in the context of what they have already tried to provide with the available resources. It needs to be questioned whether this is truly the best they can do at that moment and what they plan to do in the future to improve the situation.
Right to First Aid
In most cases, a person with epilepsy needs to get assistance during a seizure to ensure their safety. For example, when the seizure happens on the streets, they need to be guided or even carried to the side of the road to avoid any harm. But are people obliged to assist? We know that many people are not informed on how to give first aid to someone with an epilepsy seizure. You therefore cannot blame people for not assisting as long as they are not on duty. A stranger on the streets can assist, but is not obliged to do so, whereas if you have a seizure in a hospital and trained medics deny you first aid, then you can hold them accountable. This is because they have the obligation to perform their duty during working hours. Instead of blaming people for not knowing how to assist someone during a seizure, it is more useful in the long-term to take charge and teach them how to give first aid during a seizure.
When someone purposely refuses to give First Aid
If you need medical care, but someone purposely keeps you away from the provision of health services, you can hold them responsible for failing to ensure your health.
In 2011, Salim got a status seizure, which made him unconscious and in need for emergency care from a professional medic. Salim was trained on how to give first aid, and he knew that if the seizure lasts longer than five minutes, the person needs to be brought to a doctor for medical care. However, when he had the status seizure, his mother didn’t want to take him to hospital, because she didn’t trust the efforts of the doctors. Even the social worker at the Ministry of Youth Affairs couldn’t convince her to take him to hospital. Therefore they had to call the Chief who ordered people to take him to hospital. The chief was authorized to do this, because, when somebody cannot make choices for themselves anymore and their immediate family refuses to take them for emergency care in hospital, the Government then takes this responsibility. Unfortunately it had taken too long to get Salim to hospital, and he died of the seizure.
If a person with epilepsy cannot choose for them self whether to be admitted when their life is in danger, and the family doesn’t want to take them to hospital, then the chief or other authorized officers (e.g. Children’s Officer ), is responsible to take them to hospital if notified. They therefore need to be informed about the situation. We encourage you to inform the chief or other authorized officer, if you are witnessing a situation where a person with epilepsy is denied health services and cannot choose for themselves.
What if the hospital took too much time to take the necessary measures?
If a hospital unnecessarily takes too much time to take necessary measures, this amounts to negligence and is a violation of your rights. The hospital can be sued in a court of law for liability and compensation if it fails to accept liability and compensate adequately in the first place.
Every working citizen has the obligation to be insured with NHIF; a national health insurance which covers a part of your health care costs. Monthly contribution depends on your income and whether from formal or informal employment or from self-employment. Typically the employer deducts the NHIF contribution from your salary.
Besides the NHIF, you may also get an extra health insurance which covers more of your health care costs. However, people sometimes experience challenges seeking health insurance when they have epilepsy. Most companies take you through medical test before providing insurance cover. This is actually not legal because health insurance companies are not allowed to exclude you from any services their health insurance offers based on your medical background.
Article 27 (4) CoK protects a person against discrimination on the basis of health status amongst other grounds. Therefore an insurance company would be violating the rights of a person with epilepsy if they refused to cover them on that basis. They are not allowed to give you insurance where they exclude some medical services in the cover.
Quality of Care
Having access to care is not enough. It is very important that the care offered to you is of good quality. Going to a hospital and being treated makes you the customer of the hospital. The private and public hospitals therefore, have the obligation to respect your consumer rights. One of these rights is that their goods and services are of reasonable quality, and that they protect your health and safety (Article 46 CoK).
One of the ways that the Kenyan Government protects your health and safety in health care is by allowing doctors and other medical practitioners to practice only when they are certified. Doctors who do not have the certification are not allowed to treat you as a patient.
What are your rights when a doctor has given you wrong treatment?
If a doctor knowingly or unknowingly gives you a miss-diagnosis and consequently a wrong treatment, then that is professional negligence and should attract criminal prosecution. They may be ordered to compensate you. Depending on the gravity of their actions, they may have their license withdrawn. Other transgressions include sexual violations; where the practitioner can be arrested and charged under the Sexual Offences Act.