Debate as to the justice of the fees charged by doctors and hospitals went into a crescendo recently, when it was revealed that the family of a patient who had died shortly after admission to a private hospital had been slapped with what appeared to be an exorbitant bill, which they were required to pay before being allowed to take the body home for burial.
Recently also, a mother staged a protest at a hospital in Mombasa against what she thought were unwarranted medical charges.
A few weeks ago, a father resorted to sneaking his child out of Kenyatta National Hospital — in a bag — just to avoid paying medical fees.
The Kenya Medical Practitioners and Dentists Board, acting at the behest of the National Assembly’s Health Committee, conducted a public hearing consequent to which it recommended the reduction of fees charged by doctors and — mostly — private hospitals.
This also comes against the background of previously existing fee guidelines published as subsidiary legislation by the Ministry of Health through the Board.
The profession, on the other hand, speaking through the umbrella Kenya Medical Association, has refused to accept the recommendation and has insisted that it alone can set prices. Both are mistaken.
The Board is established under the Medical Practitioners and Dentists Act. The preamble to the Act states that the purposes of the law is “to consolidate and amend the law to make provision for the registration of medical practitioners and dentists and for purposes connected therewith and incidental thereto”.
That preamble does not imply a power to regulate fees. Moreover, while section 4 of the Act defines the structure of the Board and donates power to it, it does not only not describe the Board’s functions, but it also most certainly says nothing of the Board’s fee scheduling powers or functions.
A general reading of the Act suggests that the board was established to perform two functions: registration of medical practitioners and dentists, and maintaining discipline among the registered and licensed professionals.
It has been argued that the profession can by itself schedule the fees to be paid for services rendered by its members. That would be illegal, unless exempted under the Competition Act.
Private providers of health run business undertakings for profit. Any coming together of the players, through, say, an association, to set the prices of their services would be an arrangement with the express intention of affecting the market.
For such an arrangement to pass, it must be exempted under the Act. The association must make the relevant application to the Competition Authority and follow the laid-down steps to qualify for exemption.
If such exemption is not obtained, any attempt to lay down a fee schedule cutting across the medical and dental profession is a crime, null and void, and unenforceable.
The writer is an advocate of the High Court of Kenya and a law lecturer at Moi University.