Millicent Awuor Omuya& 1 Or. v. Attorney General & 4 Ors.

The petitioners were two women who gave birth and were detained by Pumwani Hospital when they could not pay maternity fees in full upon discharge. The first petitioner was referred to the hospital with a potential breech birth and was detained for 24 days after discharge when she was unable to pay her hospital bill. The second petitioner underwent emergency surgery at the same hospital after experiencing bleeding and a second surgery to insert a catheter after a suspected ruptured bladder; prior to her first surgery, she was made to wait in the reception area for several hours, despite actively bleeding. Upon discharge, she was detained for six days when she was unable to pay her hospital bill.

Neither petitioner was offered assistance by the hospital in paying their bills, despite the first petitioner attempting to seek out both a social worker and the hospital Matron for help.

Both petitioners described inadequate and unsanitary conditions during their detention, including insufficient bedding for the number of detained patients, forcing many to sleep on floors, and inadequate food. The first petitioner was held next to a toilet that flooded repeatedly. Neither underwent medical examinations or treatment during detention, despite having recently given birth and despite the second petitioner having an apparently septic wound prior to and throughout her detention. The first petitioner discovered after release that she had contracted pneumonia. Both petitioners also had additional children at home from whom they remained separated throughout their detentions. Each was released only after relatives or friends intervened to make payments towards their bills.

The petitioners alleged violations of their rights under the Kenyan Constitution and under the following international conventions: rights in the family under Article 10(2) of the International Convention on Economic, Social and Cultural Rights (ICESCR), right to be free from cruel, inhuman and degrading treatment under Articles 10(1) and 29 of the International Convention on Civil and Political Rights (ICCPR), right to be free from discrimination under Article 2(1) of the ICCPR and Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and rights of their newborn children under the Convention on the Rights of the Child (CRC).

The High Court held that the petitioners’ detention at the hospital for failure to pay the medical fees associated with childbirth constituted a violation of their rights to liberty and freedom of movement, to dignity, to health, and to be free from discrimination. The Court stated that, in order to be lawful, a detention must be carried out by lawful authorities and for just cause. Nothing in Kenyan law provided for medical institutions to subject patients to detention for non-payment, rendering the detentions unlawful, arbitrary, and unconstitutional.  Although the poor treatment in the hospital did not reach the level of torture, the Court held that the inadequate food and medical care, unsanitary conditions, and forced separation from their families and other children constituted cruel, inhuman, and degrading treatment.

The Court also noted the close interrelatedness of the rights to dignity and health and that these rights are often foundational prerequisites for the enjoyment of other rights and freedoms. The Court found that the unlawful detention was a violation of the right to dignity, and that this was compounded by the poor treatment and conditions that risked petitioners’ mental and physical health and the health of their newborns.

The Court held that petitioners were clearly discriminated against based on their economic status and that subjecting patients to detention for failure to pay fees associated with health care services that only women need, such as maternity care, constituted discrimination against women. The Court found that the obligations on states to enforce rights in international conventions in a non-discriminatory manner had immediate effects and were not subject to progressive realization.

The Court rejected the respondents’ claim that the petition was invalid due to the issuance after the events in question of a policy directive making maternity services, including post- and ante-natal care, free at public hospitals, noting that a similar directive and a waiver policy at the hospital were in place at the time of the alleged events, but had clearly not been implemented adequately or effectively.

The Court ordered the County Government of Nairobi, as the entity responsible for the management and administration of the hospital, to pay the first petitioner Kshs 1,500,000 and the second petitioner Kshs 500,000 in damages, plus court costs.

“The right to health and the right to dignity are inextricably related. In providing health care of acceptable quality, health care institutions must respect the dignity of their patients. They must also be responsive to the needs of their patients and provide adequate care. In this situation, when patients are not given care that affords them the right to dignity, it can negatively affect their well-being. From the petitioners’ accounts, their treatment fell short of the acceptable standards of health care that would guarantee protection of the right to dignity. The 1st petitioner complained of being treated rudely by the nurses in the employment of the 5th respondent. The 2nd petitioner’s account of her experience was even more unhappy. After being forced to sit on a bench for a period of time while she was bleeding, she was rushed to theatre without being informed of what procedure she was to undergo. After her delivery, she wanted to use the bathroom but the nurses treated her with contempt. This was a violation of her inherent right to dignity. The purpose of that treatment was only to humiliate her and strip her of her self-worth.” Paras. 127-128.

“We have not, as a society, clearly internalized the fact that denial or neglect to provide interventions that only women need is a form of discrimination against women. As such, the lack of state provision or facilitation of access to affordable maternal health care, including delivery and post-natal care, is a facet of discrimination against women” Para. 184.

“[T]here was a disproportionate impact on poor women’s ability to access health care, which constitutes discrimination on the basis of social origin, and negates the right of women to enjoy their constitutionally guaranteed rights and freedoms. The consequences of this pervasive discrimination is the inaccessibility of maternal health services overall, which in turn hinders the attainment of the highest attainable standard of health for poor women.” Para. 190.