Monday, November 28, 2011

The key steps in a review of health legislation

SN 27 November  2011

As the ministries of Health grapple with the enormous task of reviewing all health legislation in line with constitutional requirements, certain steps are necessary to ensure the product of this exercise meets the stated objectives.

The first step in this process should involve a review of all existing legislation on health, as well as all the enabling executive orders that have had a bearing on health in Kenya. This audit will reveal the true scope of the problem, including the existence of some archaic health legislation dating back to the colonial days, side-by-side with modern laws and regulations.

In my view, input from legal experts will be required for this process to be done successfully. Doctors and other Afya House technocrats may not be able to conduct the legislative audit efficiently simply because they are not trained for it.

The second step in this process will be to identify the constitutional provisions relating to health.These include provisions for the right to health, emergency care, clean environment, dignity and so on and so forth. This will provide Afya House with the scope of the problem as far as harmonising existing legislation with the Constitution is concerned.

Such a review may reveal that some of the health laws need to be repealed, and new Acts of Parliament will have to be drafted in order to address issues that had not been addressed under the previous constitutional regime.

In my opinion, once these reviews have been done, it will then be necessary for the government to develop a national health policy that is in line with the constitution, in order to provide a framework for the enactment of the necessary legislation. Given that a policy framework already exists in the health sector, tweaking it to redirect it towards constitutional requirements should not be difficult.

Once the policy has been reviewed and redirected, a few laws will have to be written to implement the policy directives and ensure full compliance with the constitution. In my view, such laws must include provision for a health services commission to coordinate the deployment and remuneration of all health workers in the public service.

Although it had earlier been suggested that this commission be provided for in the constitution, this commission was ignored probably due to the docility of the health workforce in this country. The situation may, however, be remedied by an Act of Parliament.

The second provision that the proposed health law must include is a health professionals’ council which will help craft the definitions of the various health professionals. It will provide benchmarks to be fulfilled for one to be considered a medical doctor, nurse, clinical officer, nutritionist or physiotherapist, among other health professionals. Apart from regulating ethical practice in the health professions, the council will also help clarify constitutional terms such as health, abortion and emergency care.

Finally, we must ensure that the process of making the proposed health law is fully participatory, and the health ministries must initiate a consultative process both within and without the health sector. They should also ensure that the concerns of health workers through their professional associations and unions are addressed in the new law.

These are the minimum requirements that will ensure that the health of Kenyans is in safe hands under the new dispensation.

Dr Lukoye Atwoli is the secretary, Kenya Psychiatric Association, and lecturer at Moi University’s School of Medicine

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