The right to emergency medical treatment in Kenya

Abstract

A recent, widely publicized incident, in which a patient died after spending 18 hours in an ambulance, awaiting emergency treatment, 1 puts into sharp relief, the Constitution of Kenya’s declaration; first, that every person has the right “to the highest attainable standard of health”, and, secondly, and more importantly, the edict that, “[a] person shall not be denied emergency medical treatment.” 2 This paper is limited to the implications of these provisions, especially the right to emergency medical treatment, on private health care providers. In view of what the Constitution says in terms of the right to health including emergency medical treatment, how should the actions of private health care providers who refuse to render critical interventions at times of emergency be rationalised within the framework of law? What legal issues emerge especially in terms of the right to emergency medical treatment? Is the right to emergency medical treatment a real right? How might the law be brought to bear upon private institutions, who because of a callous refusal to provide life saving intervention, cause a patient to die from a condition that the patient would otherwise have survived? What types of obligations inure to private health care providers in relation to emergency medical treatment? What sorts of obligations arise against the State itself in relation to this particular right? What kinds of jurisprudential conflicts may be engendered by a claim against a private health care provider in relation to the right to emergency medical treatment?