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Monday, June 27, 2016
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Nature of the Case

Two men successfully challenged their imprisonment, purportedly pursuant to the Public Health Act, for failure to take prescribed tuberculosis (TB) medication.

Enforcement of the Decision and Outcomes

On 12 May 2016, the Principal Secretary for Health issued a circular to all health officials informing them that confinement of patients with infectious diseases for purposes of treatment should be done in health facilities and not in prison. KELIN expects to follow up immediately if the Minister does not file an affidavit after 90 days detailing the steps they have taken to comply with the initial court order, to ensure the accountability of the government. KELIN plans to mobilize TB communities and other stakeholders, including funders who support TB work in Kenya, to put pressure on the national government to develop the policy. The organization will also intensify efforts on its campaign “TB Is Not A Crime! Promote adherence.” If all other measures fail, KELIN will file contempt of court proceedings.

Significance of the Case

This case, which relies on WHO Guidelines, takes an important step towards ending the widespread practice in Kenya of imprisoning TB patients for failure to complete their treatment.

It also recognizes that imprisonment for defaulting on treatment often disproportionately affects indigent people who depend on the public health system. Finally, the Court’s orders jumpstart a process of developing government policy that protects constitutional rights and adopts international norms in the TB treatment process. In particular, the decision reiterates the Government’s duty to take measures toward the progressive realization of the right to health by complying with human rights obligations engaged by particular situations, and following current ethical guidelines that promote the voluntary, constructive treatment of TB through the following steps among others: the provision of free TB Care; ensuring that patients are fully informed and counselled about their treatment; and ensuring that health care providers support patients to complete therapy. Involuntary isolation on public health grounds should only be used as a last resort after other measures have failed, and should not include forced treatment if the patient refuses it.

Groups Involved in the Case

Kenya Legal and Ethical Issues Network on HIV and AIDS (KELIN), National Empowerment Network of People living with HIV/AIDS in Kenya (NEPHAK), AIDS Law Project

Ruling