Summary
Petitioner, L.A.W., an adult woman resident of Nairobi, tested positive for Human Immuno- deficiency Virus (HIV) when she visited a health center for an ante-natal clinic visit in March 2006. She was pregnant with her second child at the time. Later, at Baba Dogo Health Centre, where her HIV status was confirmed, she was advised by a nurse not to have more children as it would be perilous to her and the baby. She was also advised to have a cesarean section to avoid transmitting HIV to her child during delivery. Petitioner could not afford the cost of the procedure, so she was given two vouchers to use at Marura Maternity and Nursing Home. In September 2006, Petitioner presented the vouchers to Marura Maternity and Nursing Home and delivered her baby by caesarean section. Around 2010, Petitioner tried conceiving with her new husband but was unable to. Upon examination and testing by doctors, she learned that she could not conceive because she had undergone a bilateral tubal ligation, an irreversible sterilization procedure, during her caesarean section in 2006.
Petitioner brought this case against Marura Maternity and Nursing Home, the County Executive Committee Member in Charge of Health Services (in charge of Nairobi County and Baba Dogo Health Centre), the Cabinet Secretary for the Ministry of Health, and the Attorney General. She pleaded that she was sterilized without her informed consent, specifically, that she was not informed of other family planning options and that she was not given the opportunity to choose and decide the appropriate method of contraception for herself. She further pleaded that her permanent inability to conceive had negatively impacted her relationship with her husband, her mental health, and her social life. It was her case that Respondents violated her constitutional right to life, freedom form discrimination, right to dignity, freedom from torture, right to privacy, freedom of expression, the right to highest attainable standard of health, the right to found families, and the right to be given service of reasonable quality, as guaranteed under Article 26, 27, 28, 29, 31, 33, 43(1)(a), 45 and 46(1)(a-c) of the Constitution of Kenya, 2010. The petition was supported by the Kenya Legal and Ethical Issues Network on HIV & AIDS (KELIN) and the African Gender and Media Initiative Trust, respectively 2nd and 3rd Petitioners in this case. Petitioners also asserted that the Respondents violated international instruments Kenya is a signatory to, including the African Charter on Human and Peoples’ Rights (ACHPR), the Protocol to the ACHPR on the Rights of Women in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture.
The High Court held that Marura Maternity and Health Nursing Home, as well as Babadogo Health Centre where Petitioner received her vouchers, failed in their duties to inform and to obtain consent, violating Petitioner’s constitutional rights. First, the Court found that Petitioner properly presented a serious constitutional issue for determination thereby establishing proper jurisdiction in the High Court. The petition identified, with the necessary reasonable degree of precision, the constitutional provisions that were allegedly violated and the nature and manner of the violation. Specifically, the Court agreed with Petitioner that her bilateral tubal ligation presented a question of whether the Respondents violated her constitutional right to reproductive health care guaranteed under Article 43(1)a of the Constitution and further explained in Section 6 of the Health Act. Section 6 of the Health Act provides that the right to reproductive health includes (a) the right to be informed about and to have access to reproductive health services, including family planning services; and (b) the right to appropriate health care services that enable parents to safely go through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant.
The Court defined informed consent as “a process” that is “the cumulative product of the steps involved in which permission is obtained before conducting a health care procedure.” The two main steps in this process are the healthcare provider’s (1) obligation to inform and (2) obligation to obtain consent. Section 8 of the Health Act details what a health care provider must inform a patient and in what manner. Section 9 of the Health Act requires that no health service may be provided to a patient without obtaining the patient’s informed consent, and provides for exceptions, including emergencies. However, the Health Act does not specify a standard procedure for obtaining such informed consent. Therefore, drawing on other sources such as decisions from the South African Constitutional Court and the Supreme Court of the United Kingdom and guidelines of the International Federation of Gynecology and Obstetrics (FIGO), as well as these provisions of the Health Act, the Court found fourteen (14) steps that a health care provider must satisfy to be regarded as having obtained informed consent. Relevant here, these steps included: Ascertain the patient’s (4) literacy level, (5) language they wish to use, and (6) as much as possible, their background. (7) Disclose the patient’s health status. (8) Explain the range of promotive, preventive, and diagnostic procedures and treatment options generally available to the patient. (9) Explain the benefits, risks, costs, and consequences associated with each option. (10) Explain the patient’s right to refuse recommended options and the implications, risks, and legal consequences of such refusal. (11) Take reasonable steps to ensure that the patient is reasonably free and not under compulsion, duress, or coercion. (12) As much as possible, give these explanations in a dialogue that aims to ensure the patient fully understands steps 7-10, avoiding technical language and using the information obtained about the patient in steps 4-6. (13) Except in an emergency, give the patient time to consider the information and to decide. (14) Obtain consent in writing.
Applying the facts of the case to these steps the Court found that 1st Respondent Marura Maternity and Nursing Home did not obtain Petitioner’s informed consent. The Court first found that Petitioner’s low level of literacy and understanding of family planning options imposed on health care providers a high legal duty to facilitate her consent. It was undisputed that Petitioner had little income, was illiterate, and was only educated up to Class 3. Further, she had lost her father when she was three years old and was married off at the age of 14 years. The Court held that Marura Maternity and Nursing Home was obligated to break down and convey in a language Petitioner understood, what a bilateral tubal ligation entailed and its implications, and check to ensure she understood. Additionally, they had a legal duty to explain the available alternatives for contraception. Instead, she was taken to surgery without being told anything about family planning, and only after a doctor injected her in her back in preparation for her cesarean section, was she asked whether she knew she was being sterilized. She answered in the affirmative but did not sign any document at this time. Petitioner later testified that she knew she was being “sterilized,” and that sterilization was related to family planning, but did not know the procedure was permanent.
Additionally, while 1st Respondent produced a consent letter, it was unable to explain the circumstances under which the letter was signed. The Court ruled that this consent was obtained from Petitioner under fear and apprehension that having children when she was HIV positive would pose a risk to her life and the child’s, a medically inaccurate position. The Court also noted that the alleged consent was not freely obtained because healthcare providers took advantage of the Petitioner’s economic vulnerability and low level of understanding occasioned by her illiteracy to subject her to the bilateral tubal ligation. It was 1st Respondent’s case that Petitioner had already given her informed consent when she obtained the vouchers at Baba Dogo Health Centre, and that therefore it did not have a further obligation to obtain consent. The Court ruled that the Health Act places individual responsibility on health care providers while providing their services to obtain informed consent, thus consent cannot be transferred from one health facility to another. Therefore, the responsibility to obtain informed consent from Petitioner firmly and squarely rested upon 1st Respondent, as the healthcare provider that conducted the tubal ligation. Additionally, there was no evidence that informed consent was obtained at Baba Dogo Health Centre, therefore there was no consent to transfer in the first place. Finally, sterilization for prevention of future pregnancy is not an emergency procedure and there were no other exceptions to the duty to obtain informed consent.
The Court held that the 1st Respondent Marura Maternity and Nursing Home violated Petitioner’s constitutional right to the highest attainable standard of reproductive health under Article 43(1)(a), right to dignity under Article 28, and right to found a family under Article 45, by failing to obtain informed consent prior to the procedure. The Court found that 2nd Respondent, the County Executive Committee Member in Charge of Health Services (in charge of Nairobi County and Baba Dogo Health Centre), also violated Petitioner’s rights by providing medically inaccurate information to Petitioner regarding the risks of pregnancy while she was HIV positive. The Court held that the bilateral tubal ligation underwent by Petitioner also violated Article 27 of the Constitution because it was unconstitutional differential treatment purely based on sex, gender, and her HIV status. Petitioner established that because of the distinction made between her and others, she was denied equal protection and benefit of the law, which was unfair discrimination that served no rational purpose and cannot be justified.
In finding the 1st and 2nd Respondents liable for infringing on Petitioner’s rights, the Court awarded compensatory and declaratory relief. The Court awarded Petitioner 3,000,000 Kenyan shillings in compensation, payment to be made 70% by 1st Respondent and 30% by 2nd Respondent, based on their amount of liability. Parties bore their own costs because this was a public interest litigation. The Court declared that: (1) It is the right of women living with HIV to have equal access to reproductive health rights, including the right to freely and voluntarily determine if, when, and how often to bear children. (2) Referral medical institutions (such institutions where patients are referred to for further medical attention) must obtain fresh informed consent from the patient for purposes of undertaking any medical operations except in cases of emergency. (3) The sterilization of Petitioner by the 1st Respondent by bilateral tubal ligation was undertaken without obtaining the Petitioner’s informed consent and as such it violated the Petitioner’s constitutional rights and fundamental freedoms under Articles 27, 28, 43(1)(a) and 45 of the Constitution.
