Health law remains undeveloped in Kenya

What you need to know:

  • Kenya had a long established health system that followed an entirely different governance system and with time, our health system became insufficient and somewhat dilapidated.
  • From a legal perspective, devolution has accelerated the need for a proper health law system
  • The burden is now on law schools to generate these much-needed legal skills

In Kenya, prisoners and patients have traditionally suffered similar fates.

They find themselves in overcrowded, understaffed, insufficiently funded facilities.

Devolution has complicated matters even more for the sick. Governors with no imagination and poor managerial skills will make their county’s health crash.

New cartels will emerge and corruption will be devolved. Devolution of health has thrown the existing structures off-centre, including health management, existing laws, financing systems and how providers actually deliver services.

Devolved health services are a necessary, unavoidable headache ordered by the Constitution. Doctors will go on strike for several years to come and hospitals will not deliver as expected, but there is no turning back. 

To make matters more exciting, pushing ahead the agenda of devolving health, paraphrasing Prof Geoffrey Boulton, is like “moving a graveyard…you get no help from the people inside.”

NAIROBI-DEPENDENT

One of the biggest challenges is that when the Constitution mandated devolved health services, everyone thought that Kenya would make high quality, affordable, accessible health care by just passing new laws.

We lawyers were formed in a world that thought all problems could be resolved with just a law. But reality is more than just laws, and this is making legal education change rapidly.

Kenya had a long established health system that followed an entirely different governance system and with time, our health system became insufficient and somewhat dilapidated. It had been designed for a heavily centralised and highly Nairobi-dependent command structure.

Everything in health, from drugs distribution to hiring and paying doctors and nurses, and from procuring hospital machinery to running dispensaries was organised from the centre.

I cannot talk for doctors, health managers and officers, but from a legal perspective, devolution has accelerated the need for a proper health law system, which is not yet taught and practiced in Kenya. 

Health law is a growing field. The complications of drug manufacturing, distribution, intellectual property, health practice and malpractice, health facilities and human rights have opened up a vast grey area which was, until now, largely unexplored in Kenya.

In Washington, DC, I met Dr Francois Franceschi, who while at the Max Planck Institute for Molecular Genetics in Berlin, directed the team that deciphered the structure of the ribosome, where proteins are synthesised.

A 'HOT' AREA

I asked Francois to explain further. As I understood it, infectious diseases damage the synthesis of proteins. This damage is repaired by existing antibiotics that place a kind of huge blanket on this process.

The huge blanket terminates the infection and restores the natural process, but it causes multiple, unwanted side-effects.

Deciphering the structure of the ribosome has made it possible to design antibiotics that cure specific infections without touching any other part of the process, antibiotics with no side-effects.

A Yale University-associated company hired Francois and he relocated to New Haven to design these new antibiotics, until the US government poached him and took him to Washington to help American companies to accelerate this process and come up with new, safer and risk-free antibiotics.

Healthcare has developed in amazing leaps and bounds, but health law has remained as old as Methuselah. Health law is supposed to be an important tool for regulating the health care sector and improving access to health services.

In Chicago, I met Smith Ouma, one of my young colleagues. Smith was a graduate assistant who had won a scholarship to do his law master’s degree in Chicago. He has a passion for health law.

Smith tells me that the American Bar Association (ABA) lists health law as one of the "hot" areas of law where demand continues to grow, offering students and practitioners a wide array of practice possibilities, both in public medicine and private sectors. 

Lawyers trained in health law play critical roles. They ensure that health facilities comply with laws and regulations. They also represent patients and doctors in malpractice and healthcare fraud cases.

INSURANCE MODELS

The competence of these lawyers is also important to drug manufacturing companies that want to protect their intellectual property rights while guaranteeing access to medicines. This is where the fields of Francois and Smith, which seemed to be miles apart, have now come so close together.

Public health authorities also need lawyers trained in health law to enforce public health regulations such as standards of manufacture and labelling of restricted consumption products. 

Most importantly, lawyers trained in health law are critical in developing legislation and policy that seek to improve access to quality, affordable, accessible health care.

They also litigate where people violate the law and help patients enforce their constitutional right to the highest attainable standards of health care.

Lawyers may also play an important role in developing health insurance models that are easily accessible to citizens. This is particularly of importance in Kenya where a recent report by Twaweza indicated 68 per cent of Kenyans do not have health insurance and have to rely on expensive out-of-pocket payments to cover their health expenses.

In the global context, health lawyers also play a role in ensuring that countries like Kenya comply with regulations placed at the global level by bodies like the World Health Organisation (WHO).

MUCH-NEEDED SKILLS

This is of particular relevance given the fact that health is increasingly becoming transnational, requiring international intervention as witnessed during the Ebola and Zika virus outbreaks.

Increased demands for healthcare services in Kenya, therefore, warrants the training of lawyers in health law to work with the government in developing laws to promote access to quality and affordable healthcare.

The health system in Kenya will get back on track. It will take some years, but in the end we hope things will settle and the health system will reduce the number of casualties due to malpractice, poor governance or corruption. 

Devolution has thrown the health system off-centre, but it did so for the better. The system needed a shake-up so that one day it may meet the demanding threshold established by Article 43 of the Constitution: “Every person has the right to the highest attainable standard of health...”

The burden is now on law schools to generate these much-needed legal skills, on medical schools to train better doctors and on management schools to train good health managers.

Only well-trained health practitioners, managers and lawyers will make our health system function smoother and better than before, and meet this much-desired constitutional threshold.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi