Dialysis Crisis and Right to Health: The legal implication?

Feature Article Dialysis Crisis and Right to Health: The legal implication?

The Kidney Health International report says, over 90% of Ghanaian kidney failure patients who desperately need dialysis are being denied access to this life-saving treatment. It further revealed that in Ghana, the overall dialysis prevalence is 38.8 patients per million population. To put it simply, only 38.8 out of every 1 million Ghanaians are receiving dialysis treatment.

Recently, the media also reported that fourteen people in Ghana's capital Accra have died after a dialysis centre shut down recently. What is the legal implication of the shutdown of the dialysis center? I herein explore:

Right to Health, Government responsibility

Cohen and Ezer (2014) agree that the “government's responsibility is to respect human rights itself, protect against violations by third parties, and fulfill the conditions necessary for the realization of rights.”

Cohen and Ezer (2014) held that: Human rights in patient care and the right to health contain overlapping subsets—the former encompasses a series of general rights that include the right to health, and the latter encompasses a series of health contexts that include the context of patient care.

Shout down of dialysis center, the law

In Ghana, the law in this area is yet to be tested. However, a UK case is instructive here, though persuasive. What did the court say on this?

In England and Wales, it has been held that Article 2 (right to life) of the Human Rights ACT(HRA) in the case of Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 can be used in exceptional circumstances to challenge the refusal to provide potentially life-saving treatment. The House of Lords held that pursuant to the right to life, health authorities have an 'over-arching obligation to protect the lives of patients in their hospitals'.

In addition, Article 3 (torture) provides a different perspective which was adjudicated in the cases: R (on the application of Watts) v Secretary of State for Health [2004] EWCA Civ 166; R (Watts) v Bedford Primary Care Trust (Case C 372/04) [2006] QB 667 (ECJ)) and held that having to wait a year for a hip replacement operation with all the interim pain amounts to torture.

The State Obligations
Owusu-Dapaah (nd) reasoned in the case of Evans v UK (2007) 95 BMLR 107, that: “The state has an obligation under the various human rights instruments to protect the legitimate interests of a patient concerning privacy, dignity, confidentiality, and respect for the patient’s autonomy”. This means that dialysis patients must be treated with all the dignity they deserve by the state.

Additionally, a report by the Committee on Economic, Social and Cultural Rights ‘General Comment 14, 2000, emphasized that: “The state is required to provide a legal framework which will ensure that healthcare professionals, whether in the publicly- funded healthcare system, or the private sector, do not violate patients’ rights at micro-level”.

Respecting patients right
Zuniga et al, (2013) agree that: “Healthcare professionals provide a central role in the promotion and protection of human rights in patient care. Consequently, the World Medical Association has emphasized the need for medical and nursing schools to incorporate human rights education into their training programmes.” This is important to enable healthcare workers to be abreast with respecting patient rights.

Cook et al., (2013) on the other hand held that: “There is perhaps no better place to begin to impart an awareness of human rights and human dignity than in the small world of the doctor-patient relationship.”

The added advantage of incorporating healthcare rights in professional codes and guidelines is that they may also be used as teaching material in medical and other healthcare professional training institutions.

Owusu-Dapaah (nd) has suggested that: “This should ensure that over a period of time, a significant segment of the healthcare professions will gradually embrace the culture of respecting, protecting and fulfilling the human rights of their patients in a clinical context. The upshot of such a development is that there should hopefully be a real reduction in medical malpractice which is predominantly healthcare rights-related”.

Thus, Owusu-Dapaah (nd) believes that the current available energetic civil societies in Ghana, including NGOs could extend their advocacy work on general human rights to focus particularly on healthcare and its related rights. NGOs should be interested in pushing for the actualization of some of these rights in the Ghanaian healthcare system.

Enforcing healthcare rights
One important institution of the State that provides the platform for all Ghanaians to seek redress for infringement of their human rights is the Commission for Human Rights and Administrative Justice (CHRAJ). The Commission allows all citizens especially the poor to lodge complaints of their human rights complaints.

Owusu-Dapaah (nd) held that: “Normative standards in the form of healthcare-related rights and other legal regulatory frameworks are important for patient empowerment, they will not make a meaningful impact unless they can be enforced when there have been breaches.”

Accordingly, access to justice is very important. The courts, including the dedicated Human Rights High Court, may be unaffordable for many aggrieved patients in the lower income bracket. CHRAJ, which is a quasi-judicial body, can serve as an important alternative to the courts in ventilating grievances. The attraction of CHRAJ as a forum for remedying the violation of healthcare-related rights is that legal representation (and thus the costs of this) can be dispensed with.

Take Home
There is a need for the state to intercede to protect the rights of kidney patients in the country. NGOs should take an interest in enforcing health rights. Finally, from the decided cases in the UK, it is torture to deny dialysis patients treatment by shouting down the center.

Prof. Raphael Nyarkotey Obu is a Professor of Naturopathy. Recently completed the BL course at the Gambia Law School, Banjul, The Gambia. E-mail: [email protected] . This article is for educational purposes only.