A Covid 19 patient who needs to acquire hospital care in Uganda must now employ a triple strategy to survive. The first strategy is to fight the virulent virus in your body. The second strategy involves fighting the high cost of treatment which may await you at the hospital. The third strategy involves praying that both the virulent virus and the astronomical cost of treating it, do not kill you sooner. One thing for sure is that whether you survive or die from the virus, you may not survive the high cost of the treatment unless you are lucky to be admitted in a public hospital like Mulago, Entebbe Grade B or Arua where you will be charged an average of Ugx1M per day in the Intensive Care Unit. The only private hospital which keeps its charges aligned to the public hospitals is Lacor hospital in Gulu.
The constant reports in Uganda of patients or dead bodies being held by hospitals as security for payment of outstanding medical bills, is turning the Covid 19 pandemic into a real horror. Matters have been made worse by further reports that some patients have been denied emergency medical treatment which includes oxygen therapy or support because they cannot make an advance payment. This offends Section 8 of the Uganda Medical and Dental Practitioners Council Code 2013 which provides that a practitioner shall not deny emergency treatment or health care to a patient. Everyone knows that Covid 19 presents a health emergency. Why should any medical practitioner of goodwill deny any Covid 19 victim treatment especially if they are in a critical condition? Sadly, many patients have died in the process of being denied much needed emergence treatment. There is no doubt in my mind that the concerned hospitals bear legal responsibility for such deaths!
The Government response to the public outcry over the high cost of treating Covid 19 patients has been and is still largely on the way. This kind of underwhelming attention to such an acute health risk may actually speak to a misdiagnosis of the problem. The misdiagnosis can be blamed on the apparent categorisation of the question of the cost of treatment of Covid patients in ICUs as a purely medical issue.
The above approach is what the RT. Hon. Prime Minister Hon. Robinah Nabbanja and Col. Edith Nakalema, head of the State House Anti-Corruption Unit, appear to have adopted. On the 24th June 2021, the duo convened a meeting with proprietors of private hospitals after they received more than 500 complaints from the public about the high charges of treating Covid 19 patients at private health facilities. Through the said meeting, they had promised to deliver a solution by the 28th June 2021. The solution has not been delivered and it may not be delivered any time soon because they are using political hand gloves to solve the problem. In the meantime, many private hospitals are continuing to squeeze desperate patients and their families for more money.
In my considered view, the issue of the cost of medical treatment and the provision of medical services in general is anchored in the law. Therefore if there is any issue arising with the cost of medical services, it may not be possible to ignore the law if you want to address the issue comprehensively. This is because to everything, there is a legal nexus.
It is the Medical and Dental Practitioner’s Act in Section 42 thereof which grants a medical practitioner the right to demand reasonable charges for any medical services rendered. The import of this provision is that any medical charges levied must be shown to be reasonably incurred within the prevailing market conditions. The law envisages that the medical service provider must not operate at a loss. They must recoup the input cost of providing the service and remain with a reasonable mark up to sustain and grow the business. The law may view it as extortion and profiteering if some private hospitals charge Ugx5M for the same Covid 19 treatment offered by public hospitals in the same market.
Medical services fall in the category of basic essential services because they sustain the most fundamental human right, which is the right to life. Medical services are not goods of ostentation like most luxury items where price madness is the norm. Goods of ostentation are an exception to the law of demand since demand is high when the price is high. People who buy ostentatious goods think that if it is more expensive, it must be of better quality. But if the price is high and there is a public outcry as with the case of Covid 19 treatment, it ceases to be a price of ostentation. This should make out a case of insidious extortion.
Why is it that we have not had a similar public outcry with the treatment of other life threatening diseases like cancer or heart disease which affect many people and are also expensive to treat? The fact that there is a public outcry now over the cost of treating Covid 19 means that there is a leveraged distortion of the market which cannot be taken by the consumer anymore!
It is important to note that the law also provides that the medical practitioner shall be entitled to sue for recovery of his or her reasonable charges in any court of competent jurisdiction if they are not paid. A hospital faced with an unpaid medical bill should endeavor to collect all receipts before discharge or obtain an undertaking to pay the debt at the point of discharging the patient. The hospital can be able to sue for recovery if there is a default on payment. If the patient dies before the bill is paid, the hospital should be able to follow the same procedure and recover from the estate of the deceased. However convenient it may be, a hospital is not permitted by law to detain the physical person of the patient neither is it permitted by law to hold onto the dead body of a patient to secure payment of medical bills.
Retaining the dead body hinders the burial of the deceased and this amounts to a criminal offence under Section 121 of the Penal Code Act. This is punishable on conviction by a custodial sentence of 2 years in prison. Hospitals must also realise that they are not gazetted detention centres under the law to enable them legally detain any wrong doers whether dead or alive. Hospitals may attract legal liability for false imprisonment and unlawful restriction of a person’s liberty if they do not desist from detaining indigent patients who are unable to pay their bills at the material time of asking or dead bodies which are not even aware of the bills they have left behind.
The above postulation of the law was borne out of the English Common law case of R Vs Fox (1841) 2 QB 246 where it was held that a creditor is not entitled to retain the dead body of his debtor as a security for his debt. There is abundant jurisprudence from Kenya on this subject which has followed the decision in R Vs Fox ibid and which can be followed in Uganda as well. The Kenyan cases of Jackson Damian Msacha Vs Pandya Memorial Hospital c/s no. 63/1998 and Mary Nyanga’anyi Nyaigero and Anor Vs The Karen Hospital Ltd and Montezuma Monalisa Funeral Home Ltd c/s no. 448/ 205 are very instructive.
It is clear from the above legal discourse that the practice of detaining patients in hospital as a means of enforcing recovery of unpaid medical bills is not authorized under the law. Since this practice was outlawed more than 180 years ago for being immoral and repugnant to decent human behaviour, we should not allow it to take root in Uganda.
In conclusion therefore, I would suggest that any Government efforts to tackle the problem of the exorbitant cost of treating Covid patients must be fashioned under a legal context. I take the view that the Attorney General who is the legal advisor to Government is well placed to give guidance to the office of the Rt. Hon Prime Minister and the Minister of Health on this matter. The Attorney General might also want to guide the Medical and Dental Practitioners Council to exercise its legal mandate under the law to sanction its errant members who may be philandering and profiteering from this Covid crisis.
To remain relevant, the Uganda Law Society should also invite itself to any meeting called to discuss this important issue in the public realm, if it cannot call the matter to attention by itself. Alternatively the Uganda Law Society which has a statutory duty to protect and assist the public in Uganda in all matters touching, ancillary and incidental to the law must force the issue by prompting Government to act swiftly or otherwise take the necessary legal action to protect the public.
On the part of the Health care providers, they are appreciated and encouraged to continue providing services ethically and within the confines of the law. They should take independent legal advice on how to be compliant with the law.
So if anyone out there still doubts that lawyers are part of the essential services during this Covid 19 lockdown, they should think again.
By Fred Muwema
Managing Partner
Muwema and Co. Advocates
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