Detention of patients by hospitals over unpaid hospital bills has become a very common phenomenon. Hospitals justify this practice on the basis that once they release patients it is impossible to follow up the unpaid bills. This phenomenon is a true depiction of the sad effects of ever-escalating cost of medical services combined with the dwindling financial fortunes of the average Kenyan. Lack of a national medical health insurance scheme has ensured that the situation remains unchanged.

Traditionally, Kenyans unable to meet the high cost of medical services offered to their kith and kin often resort to fundraising within their social circles. Hospitals have realised that in most cases, relatives will go to any lengths to secure the release of their kith and kin who are detained over unpaid medical bills. This comes in especially handy where the patients don’t have any assets that can be taken as security for the costs of treatment. Invariably, relatives of such patients will negotiate with the hospitals with the usual request being that the patient be released as they make efforts to settle the medical costs over an agreed period. These arrangements however end up impoverishing families and communities already saddled with other financial requirements especially where the patient is the main breadwinner in the family.

Until recently, many Kenyans had accepted that hospitals are entitled to detain patients who do not or cannot pay the bills incurred in the course of their treatment. It did not help that politicians routinely attend fundraisers to raise money for medical bills thereby creating the impression that even the Government approves of the approach taken by hospitals.  

Granted that Hospitals are private institutions that are in business and are therefore entitled to pursue recovery of the costs incurred by patients for services rendered to them, but one cannot lose sight of the fact that patients are human beings who enjoy constitutional rights including the right to have their inherent dignity respected and protected. Both the right to conduct business and make a profit and the right to be treated with dignity are recognised by law. The problem arises when there is a conflict between them. In the case of detention of patients, the hospitals’ position is that they have the right to recover their money. It must be remembered that hospitals have employees who have a constitutional right to fair remuneration and reasonable working conditions, which rights the hospitals cannot honour unless medical bills are settled. Hospitals are also expected to support the obligation imposed under the Constitution to the effect that consumers are entitled to be provided with services of a reasonable quality. However, this must be balanced against the patients’ right to freedom and security of the person, freedom of movement without undue hindrance and the right not to be detained without trial. All these rights are enshrined in the Constitution. At the heart of this interplay is the question as to whether detaining patients to compel payment of outstanding medical expenses is legally defensible.

In view of the emotional effect of the practice of detaining impecunious patients, it was inevitable that the Courts would be called upon to resolve the competing interests  to ensure that the ends of justice are met.

In the recent judgment delivered by the High Court, in a case filed by Emmah Muthoni Njeri against The Nairobi Women’s Hospital (the Emmah Muthoni case), the High Court provided clarity on the significance of patients’ constitutional rights under Articles 28, 29 and 39 of the Constitution as compared to hospitals’ constitutional right to property. The Court was of the view that any form of detention not sanctioned by law that seeks to procure performance of a contractual debt is a violation of the right to liberty and human dignity. The Court equated holding patients within hospitals for failure over unpaid bills to illegal detention of the patient. In the case, the Court ordered the Nairobi women’s hospital to pay Emma Muthoni Kes 3 million for illegally detaining her.

The other significant finding by the Court was that the patient had no obligation to pay any expenses that may have been incurred by the hospital during the unlawful detention period. The reasoning of the Court was that no person ought to be compensated for costs or expenses incurred in the commission and perpetuation of unconstitutional acts.

Although the court faulted the hospital for detaining Emma as a method of collecting payment, it held that patients have an obligation to pay the medical bills incurred as at the date of discharge. The Court noted that there was a contractual relationship between the Patient and the hospital for which the hospital could pursue other lawful means of recovering its debt other than detaining its patients. To balance the interests of both parties, the Court ordered that the amount payable to Emma be used to settle the medical bills which had accrued at the time of discharge.

The above judgment serves as a prime example of how Courts balance the competing interests between the patients and hospitals’ constitutional rights. The judgment notably reaffirms that a patient’s inviolable constitutional rights to dignity, freedom, security of the person and right to freedom of movement would ordinarily outweigh the hospital’s constitutional right to property. Ultimately, it underscores the premise that detention of a person to enforce a contractual debt violates constitutional rights and freedoms and as such, it is not one of the remedies available to hospitals to enforce payment of outstanding medical bills.

We have already noted a new trend where hospitals now require significant deposits before admitting patients. While this may be useful in mitigating the losses hospitals may incur in unpaid invoices for medical services, this practice will hamper access to medical services for all. Again, it is only a matter of time before the question whether demands for hefty deposits prior to offering treatment including emergency treatment is another form of violation of the right to access medical treatment and the duty cast on hospitals and doctors to protect the right to life.

The article was featured in the Business Daily and can be accessed here.