Access to JusticeMarch 27, 20210 CommentsKituo Cha Sheria

The recent surge in the COVID- 19 infections has threatened to overrun the healthcare system according to the Ministry of Health. Our healthcare facilities are already straining given the drastic rise in positivity and fatalities in the recent days. To worsen the matter, the country is grappling with a third wave of the virus and that is said to be more lethal and contagious.

As of 23rd March 2021, Kenya’s COVID-19 caseload stood at 123,167. This represents a spike in positivity from 2% in January to 22% in March 2021. This data come at the backdrop of a recent study which revealed that Kenya has about 537 Intensive Care Unit (ICU) beds and just under 300 ventilators.

The ICUs have been stretched beyond limits with major referral hospitals reported to have run out of beds, with many more hospitals on the brink of being overwhelmed as Covid-19.

If the projections by the Kenya Medical Research Institute (KEMRI) are anything to go by, then hospitals might be forced to decide on which critically ill Covid-19 patients are saved  and the ones that will be let go due to the shortage of ICU bed. Noting the scarcity of ICU staff and facilities (ventilators and beds), the hard question that begs an answer is; at what point and time should such resources be withdrawn and withheld from some patients and reallocated for others?

Imagine in a situation where two critically ill patients, gasping for air visit the hospital where you are nurse and only one free ventilator is available. One of them is aged but looks strong while the other is young and emaciated. Imagine the older patient being a health care worker. Who do you put on the ventilator?

There are suggestions that you give the ventilator to the younger patient who has more life to live. There are those who suggest that you give the ventilator to the older one as his situation is not as deteriorated and is likely to live a “better life” if he survives.

Others argue against age, and state that the determining factor should be the experience and skills, the assumption being that the older one has a wealth of this.

There are those who argue on reciprocity that the old health care provider risked his life significantly and we owe him for putting his life in harm’s way. Additionally, being a health worker, he is likely to return to the frontline to fight the pandemic if he survives.

Additionally, there are those who argue against prioritizing the ventilator to a person with disabilities by stating that their quality of life is already diminished.

Such suggestions are not unfounded as in 2020, when in the United States policies were being made over looming ventilator shortage, some states such as Tennessee and Alabama conspicuously published guidelines excluding persons with disabilities. This led to concerns by persons with disabilities and huge outcries. As a result, the guidelines were hurriedly pulled down.

The above illustration of scarce ventilators exemplifies the dilemma and complexities of the choices that health care workers have to make. Notwithstanding, the dilemma and the choices health care providers make in such situation may subject them to possible lawsuits and their actions may be weighed against the following bodies of laws:

  1. Criminal law- the healthcare worker may be held liable for patient murder and manslaughter.
  2. Human rights law- The healthcare worker may be called to answer for violations of the the right to life, dignity, health and freedom from discrimination.
  3. Civil law- The health care worker may be accused of negligence.

Earlier during the pandemic, the Italian health officials were made to decide which patient to treat and which to let die when their health care system was overrun. The Atlantic online newspaper on March 11, 2020 explained the situation as follows, “There are now simply too many patients for each one of them to receive adequate care.”

In view of the dilemma posed the Italian College of Anesthesia, Analgesia, Resuscitation and Intensive Care (SIAARTI) published guidelines informed by the principle of maximizing benefits for the largest number. The guidelines provide that “the allocation criteria need to guarantee that those patients with the highest chance of therapeutic success will retain access to intensive care.”

The authors, medical practitioners then crafted a set of concrete recommendations for how to manage these impossible choices including providing when it may become necessary to establish the age limit of a patient.

In Kenya, the starting point should be by the Ministry of Health formulating guidelines and the criteria healthcare workers should follow during the extra- ordinary circumstances. The guidelines ought to suggest the most widely shared and acceptable criteria in cases of scarce health care resources.

Kenya lacks a comprehensive guideline on the allocation of scarce health resources. The only related guidelines touch on the management of COVID- 19 (without providing the criteria for allocation) and further guidelines on what a ventilator prototype should have.

There is no doubt that personal subjectivities may obscure and improperly influence clinical judgments and choices of health care workers when allocating limited resources. A guideline will help cure the arbitrariness, inconsistency, discriminatory and possibly illegal decisions that may be made by the healthcare worker.

The criteria adopted in the guidelines should not penalize the poor and the marginalized. Private hospitals in Kenya have recently been criticized of hiking the cost of the ICU-based healthcare services amidst the pandemic. Allocation of limited resources should not be based on the patient able to pay for the resource rather an objective laid down criteria that covers all.

Adopting a human rights-based approach in the allocation of limited resources that respects human life, does not in dignify patients and does not discriminate based on status and disability is highly encouraged. This will create confidence and will obliterate the legacy of inequalities of our health care system. Particularly, persons with disabilities should not be reduced to stereotypes of their “probable” quality of their life during the pandemic.

We can only wish that we will flatten the curve and that traumatic ventilator decisions will not be widely made in our country.

John Mwariri is an Advocate of the High Court of Kenya

Programme Manager- Legal Aid and Education Department

Kituo Cha Sheria

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