THE RIGHT TO HEALTH AND EMERGENCY TREATMENT: AN ANALYSIS OF  THE ALEX MADAGA CASE

Abstract

The right to health is universally recognised under instruments such as the Universal  Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social  and Cultural Rights (ICESCR). It is equally considered a human right. Central to the concept  of human rights are their inherent and inalienable nature; every person is entitled to rights by  virtue of being human, and such rights cannot be taken away or separated from the  individual. In the tragic Alex Madaga Case, a man died after being denied admission by two  private hospitals due to financial constraints highlighting the practical implications of this  right. This paper examines the constitutional and statutory frameworks governing the right to  health and emergency treatment in Kenya, particularly under the Constitution of Kenya  (2010) and the Health Act.

Through the lens of the Alex Madaga case, this paper explores the legal and ethical  obligations of medical professionals and institutions and the extent to which the right to  emergency medical care is protected and enforced in practice.

Key words: Right to Health, Emergency treatment, Alex Madaga, Medical Ethics

Introduction

According to the Office of the High Commissioner for Human Rights (OHCHR), the right to  health is a fundamental human right that is crucial for the realization of other rights¹. The  violation of this right may often impair the realization and enjoyment of other human rights  such as the right to education. The fundamental principles of human rights include its  inherent nature which speaks to the fact that every human being is entitled to rights by virtue  of being a human and, its inalienability which means that rights cannot be taken away or  separated from a person. 

This right has been codified by various international and national instruments worldwide.  Article 25(1) of the Universal Declaration of Human Rights (UDHR)² provides that  everyone has the right to a standard of living adequate for the health and well-being of  himself and his family. Similarly, Article 12 of the International Covenant on Economic,  Social and Cultural Rights (ICESCR)³ provides that State Parties to the Covenant recognize  the right of persons to enjoy the highest attainable standard of physical and mental health. In  Kenya, this right has been codified in the Constitution of Kenya (2010) and the Health Act.  Article 43(1)(a) of the Constitution⁴ provides that every person has the right to the highest  attainable standard of health which encompasses the right to health care services.

Consequently, Section 5(1) of the Health Act⁵ provides that every person has the right to the  highest attainable standard of health comprising the progressive access for provision of  promotive (enhancing overall well-being), preventive (actions to stop the occurrence of a  disease), curative (solutions such as medicine and surgery that eradicate diseases), palliative  (reducing pain or causing relief without providing a cure) and rehabilitative (interventions to  help regain physical, mental and cognitive abilities) services.

The Alex Madaga Case Study

On the 5^th of October, 2015 at around 9:00pm, Alex Madaga, the patient, was involved in a  road accident sustaining serious head injuries. He was first taken to PCEA Kikuyu Hospital  which lacked an Intensive Care Unit (ICU) necessary to deal with his injuries. The hospital  administered emergency treatment to stabilize the patient and offered an ambulance to transfer him to the Nairobi Women’s Hospital. The ICU did not have a free bed therefore the  patient was transferred to Kenyatta National Hospital (KNH) where all ICU beds were  occupied. The paramedics saw it too risky to move him around and opted to wait at KNH in  hope that the situation may change. They waited for 8 hours and were running out of oxygen.  They therefore opted to look for a hospital. They arrived at Coptic Hospital which had the  required facilities but had a prerequisite fee of Kshs. 200,000 before admission. The patient  was not examined by a clinician. The patient’s wife, Jesca Moraa made a request to deposit a title deed as security of the payment but was promptly rejected. The patient was transferred to  another ambulance which took off to search for alternatives.

They arrived at Ladnan Hospital where a deposit of Kshs. 200,000 was demanded before  admission. It was later discovered that an ICU bed was unavailable at the hospital; this was  after 4 hours of making a request for his admission. This was around 10:30 am. Alex was  later transferred back to KNH at 11:00 am where they waited. At this point, Alex now  required a ventilator to breathe. He was eventually admitted at KNH. Unfortunately, Alex  Madaga later succumbed to his injuries. This whole journey seeking emergency treatment  lasted 18 hours.

The Court awarded the deceased’s family Kshs. 2,500,000⁶.

It also order that⁷:

a) the Chairperson of the KMPDB to reprimand Coptic Hospital for its failures.

b) the KMPDB to liaise with the Ministry of Health to:

1. create guidelines on payment for emergency treatment.
2. disseminate policies and guidelines for referral of emergency cases. iii. develop and implement regulations for the registration, practice, licensing and operation of ambulance services within 90 days of the ruling.

Right and Duty

Section 2 of the Health Act⁸ defines emergency treatment as the necessary and immediate  health care that must be administered to prevent death or worsening of a medical condition.  In addition to this, the Health Act under Section 7 (1)⁹ and (2)¹⁰ recognises for the right to emergency treatment. It provides that every person has the right to emergency medical  treatment which includes pre-hospital care, stabilizing the health status of the person and  arranging referral in case the health provider in the first call lacks the adequate facilities to  stabilize the patient.

Sub-section 3¹¹ provides that medical institutions that fail to provide emergency medical  treatment while having ability to do so commits an offence and is liable upon conviction to a  fine not exceeding Kshs. 3,000,000.

Medical professionals are bound to certain ethical principles. They are moral commitments  that doctors aim to achieve in their clinical decision making. The relevant principles in this  case include: beneficence and justice.

Beneficence

This is the commitment of a doctor to act in the best interest of the patient. It is generally  applied in situations where overriding circumstances to autonomy exist such as emergency  situations where there is a commitment to save the life of a patient or prevent deterioration of  their health.

Justice

This is the idea that all patients are entitled to equal access to healthcare regardless of their  socioeconomic status.

The refusal by Coptic and Ladnan hospitals to admit Alex Madaga was a breach of their duty  as medical professionals.

Despite Kenya’s robust legal framework guaranteeing the right to health and emergency  treatment, including the Constitution of Kenya and the Health Act, the enforcement of these  provisions is weak. The above case demonstrates a disconnect between law and practice of  law, especially in the private healthcare sector. The hospitals that denied Alex admission,  despite having the infrastructure and personnel, suffered no immediate legal sanctions. The  Kenya Medical Practitioners and Dentists Council (KMPDC), an institution that governs the  conduct of medical professions, failed to hold these hospitals and the medical practitioners  accountable. Furthermore, patients often lack the knowledge or resources required to seek  timely redress. This disconnect between rights and solutions undermines the realization of  socioeconomic rights. It highlights the need for legal reforms, strengthening of institutions  and awareness campaigns to ensure that health care rights are actionable and enforceable.

Conclusion

The right to health is universally recognised as a fundamental human right, essential to the  dignity and well-being of every individual. The Alex Madaga case affirms this right by  underscoring that all persons are inherently entitled to access healthcare services, especially  in emergencies. It also highlights the legal and ethical duty of medical professionals and  institutions to uphold this right without discrimination or delay. However, the case further  reveals a troubling disconnect in Kenya’s healthcare system. Many institutions remain ill equipped, lacking both critical infrastructure and sufficient personnel to meet the demands of  emergency care. This gap calls for urgent policy reforms and practical investments to ensure  that the right to health is not merely aspirational, but effectively realised for all.

Reference(S):

The United Nations Office of the High Commissioner for Human Rights (OHCHR), ‘CESCR  General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)’  (OHCHR, 11th Aug 2000)  https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WRGS/Health/GC14.pdf

last accessed 29^th July, 2025.

The United Nations Office of the High Commissioner for Human Rights (OHCHR), ‘Fact  Sheet No. 31’, (OHCHR, 31st, June 2008, https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf last  accessed 29^th July, 2025.

Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III))

International Covenant on Economic, Social and Cultural Rights(adopted 16 December 1966,  entered into force 3 January 1976) 993 UNTS 3

Constitution of Kenya 2010

The Health Act 2017

Public Complaints Committee, In the matter of Alex Madaga (Deceased) (Ruling, 2015) http://www.kelinkenya.org/wp-content/uploads/2017/01/PCC-ALEX-MADAGA RULING.pdf last accessed 29 July 2025.

KELIN Kenya, ‘Justice for the late Alex Madaga’s family as the Court awards them 2.5 Million  Shillings’, (KELIN Kenya, 6^th Oct 2017) https://www.kelinkenya.org/justice-late-alex madagas-family-court-awards-2-5-million-shillings/ last accessed 29^th July, 2025.

Brian Beauttah, ‘Examining Judicial and Tribunal Decisions on Emergency Medical Care in  Kenya’ (5 Nov 2017) https://knightsemsblog.files.wordpress.com/2018/10/knights 20171105-judicial-and-tribunal-decisions-on-emergency-medical-care-in-kenya.pdf last  accessed 29 July 2025.

About the author

Michelle Otieno is a law student from Mount Kenya University, Parklands Law Campus in  Nairobi, Kenya. She has a passion for Intellectual Property Law with a Distinction in a  General Introduction to Intellectual Property Law from the World Intellectual Property  Organisation (WIPO). Outside of academics, Michelle enjoys playing golf, reading and  pottery.

^{1 Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 31: The Right to Health (June  2008 https://www.ohchr.org/sites/default/files/Documents/Publications/Factsheet31.pdf accessed 29 July 2025}

^.2 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) art 25(1)

³International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into  force 3 January 1976) 993 UNTS 3, art 12

⁴ Constitution of Kenya 2010, art 43(1)(a)

⁵ Health Act 2017 (Kenya), s 5(1)

⁶ KELIN Kenya, ‘Justice for the late Alex Madaga’s family as the Court awards them 2.5 Million Shillings’ (6  October 2017) https://www.kelinkenya.org/justice-late-alex-madagas-family-court-awards-2-5-million-shillings/ accessed 29 July 2025.

⁷ Public Complaints Committee, In the matter of Alex Madaga (Deceased) (Ruling, 2015) http://www.kelinkenya.org/wp-content/uploads/2017/01/PCC-ALEX-MADAGA-RULING.pdf accessed 29 July  2025.

⁸ibid, s 2

⁹ibid, s 7(1)

¹⁰ ibid, s 7(2)

¹¹ ibid, s 7(3)