Lumumba Lena Owano
Every patient has the right to decide what happens to their own body. In Kenya that right is grounded in the Constitution, which guarantees the right to the highest attainable standard of health under Article 43, and given practical effect by the Health Act, 2017.
What the Health Act requires
Section 9 of the Health Act provides that a specified health service may not be provided without the patient's informed consent, subject to limited exceptions. These include where the patient lacks capacity and consent is given by a mandated representative or next of kin, where treatment is authorised by law or court order, and in emergencies. Health care providers must take all reasonable steps to obtain consent.
Consent is only informed if the patient has been given the information the Act requires under section 8, such as the nature of their condition, the available options and their benefits and risks. Courts have emphasised that informed consent is a process, not a signature on a form.
When lack of consent becomes a claim
Where a procedure is carried out without valid consent, or without the patient being told of a material risk that then occurs, the patient may have a claim for compensation, even where the procedure itself was performed competently.
Complaints to the medical council
Separately from a court claim, patients can complain about a doctor's professional conduct to the Kenya Medical Practitioners and Dentists Council (KMPDC). Complaints are inquired into by the Council's Disciplinary and Ethics Committee under the Medical Practitioners and Dentists (Inquiry and Disciplinary Proceedings) (Procedure) Rules, 2022.
A KMPDC complaint addresses professional conduct and can lead to sanctions against a practitioner. It is not a substitute for a civil claim for compensation, and the two can proceed in parallel. We advise clients on both routes and how best to sequence them.
Your rights as a patient
As a patient you are entitled to:
- Clear information about your condition and treatment options
- Ask questions and take time before consenting, except in an emergency
- Refuse treatment
- Confidentiality of your medical information
- Complain about the care you received
Sources
This article is general information on Kenyan law as at its publication date and is not legal advice.
