The illegality of detaining patients

Inside court 
Fatia told court of the previous warnings from the Uganda Medical and Dental Practitioners Council on the detention of patients and that Jaro hospital was subject to the regulations of the Council. 

She also relied on the guidelines from the World Health Organisation (WHO) and the Constitution of Uganda to persuade court that the decision to detain the patient on account of failure to clear the hospital bills was unconstitutional and amounted to cruel and degrading treatment.

Witness account 
To Dr Odongo the version of events, as presented to court by the two witnesses, were ridiculous, untrue and baseless and deserved to be dismissed. 

To him the accusation had the potential to tarnish the reputation of the hospital. 

By the time the patient was forcefully discharged after a directive from the deputy registrar of the High Court, there was an accumulated bill of close to Uganda Shs5m.

The applicants in the case put forward the following issues for court to determine;

• Whether the patient was, in reality, detained by the hospital.

• Whether the detention of the patient amounted to a violation of his rights to personal liberty under the Constitution.

• Whether the detention of the patient amounted to a violation of his right to freedom from cruel, inhuman and degrading treatment.

However, to court the main issue was whether a hospital can lawfully detain a patient who has defaulted to clear hospital bills. 

Constitutional provisions 
The framework on the detention of persons is grounded on personal liberty as a constitutional imperative under the Constitution. The Constitution posits citizens’ rights to personal liberties as a “hands off right” in the Freedom Charter of the Constitution.

Under the Constitution, a citizen’s individual right to liberty may be limited in the following broad ways: by operation of a court order, on suspicion of the commission of an offence, for public health concerns and for the safety and educational needs of a child. 

The right to liberty may also be limited for welfare considerations of children and public safety in cases of persons of unsound mind. To this effect, the Parliament has enacted different laws to deal with circumstances when the right to liberty may be limited.

The view of court is that for a claim of unlawful detention to be established, three elements must be proved;

• The willfulness of the detention;

• The detention must have been without the consent of the person detained;

• The detention must be unlawful.

Illegal detention 
A detention can become illegal if it is in an unauthorized and ungazetted place. Courts have further clarified that when a person has been arrested and detained on suspicion of commission of an offence, such a detained person must be produced before a court of law within 48 hours. The question in this particular case was whether a patient may be detained by a private hospital on account of failure to pay his or her medical bills.

The WHO policy guide is that no person should be detained in a hospital against their will for nonpayment of bills and other fees. 

The argument is that such detentions are in violations of international human rights laws and the framework on inclusive health coverage objectives. The WHO policy guidelines acknowledge the imperfect nature of the legal framework dealing with health systems and the gaps in health financing but the guidelines state that there are legal options to ending the illegal practice of detaining patients.

The guidelines also highlight short-term interventions to address the phenomenon of what the authors call “uncompensated care” at the level of the health care provider such as insurance cover, special mobilization of funds and establishment of a special fund to finance especially costly medical interventions.

Arbitrary arrests 
The International Covenant on Civil and Political Rights prohibits arbitrary arrests and detentions and specifically prohibits the detention of persons on grounds of failure to fulfill contractual obligations and that nobody should be detained by a creditor or the State on account of failure to pay a debt.

In some jurisdictions there are specific laws enacted to ban detention of patients in hospitals. However most of these guidelines in international law are advisory and therefore take the nature of soft law which does not create formally binding obligations. 

In Uganda there is no legal provision for the detention of patients who fail to pay their medical bills. And as a result there is no shortage of stories where patients and dead bodies are detained in hospitals because their relatives failed to raise the medical bills in time.

  To be continued   
The accumulated bill was Shs5m

Dr Sylvester Onzivua
Medicine,  Law & You