Implementing the Reproductive health Provisions of the Kenya Constitution

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Implementing the Reproductive health Provisions
of the Kenya Constitution

• The Role of the Medical Fraternity
• Presented at the
• Kenya Medical Association Scientific Conference
• Merica Hotel, Nakuru, April 27- 30, 2011
• by
• Professor JKG Mati
• Mua Hills, Machakos

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Outline of Presentation

• Introduction
• Scope of roles of Medical Fraternity
• Implications of Art.26(4) to provision of safe
  abortion services
• Questions arising from Art 26(4)
• Access barriers to legal safe abortion
• Time for a paradigm shift
• Conclusions

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Provisions in Art 43 (1) of the Constitution of
Kenya

• Every person has the right
• (a) to the highest attainable standard of health,
  which includes the right to health care services,
  including reproductive health care
• (b) to accessible and adequate housing, and to
  reasonable standards of sanitation
• (c) to be free from hunger, and to have adequate
  food of acceptable quality
• (d) to clean and safe water in adequate
  quantities
• (e) to social security and
• (f) to education.

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Other constitutional guarantees that are relevant
to health care, (besides Article 43 (1) (a)

• Commitment to nurturing and protecting the
  well-being of the individual, the family,
  communities and the nation (Preamble).
• Implementation of international/regional
  conventions and commitments (Art. 2 (6))
• Respect and protection of dignity for every
  person (Article 28)
• Equality and freedom from discrimination (Article
  27)
• Emergency medical treatment (Article 43 (2))

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Health Professionals at all levels have key roles
to play in implementation of health provisions in
the Kenya Constitution

• These roles include
• Guiding making and/or updating of laws and
  policies to reflect new provisions
• Defining and/or interpreting provisions w.r.t.
  improved access to quality health care
• Ensuring health planning and provision observe
  principles enshrined in Constitution human
  rights, equality, equity, dignity and freedom
  from discrimination.

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Health policies and strategies

• Need to review/update current policies and
  strategies to reflect constitutional provisions
  related to RH, these include
• National Health Sector Strategic Plans
• National RH Policy
• National RH Strategy
• National Road Map for accelerating the attainment
  of MDG4,5 in Kenya
• etc.

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Implications of constitutional guarantees to RH
programming

• Examples
• Access to RH information and services is a right
  for all
• Access to quality RH services is a right for all
• Provision of RH services must respect the dignity
  of every person
• Planning of RH services must observe principles
  of equality and freedom from discrimination
• State has responsibility to ensure access to
  adequate health care by all including the poor
  and marginalised groups

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Right to life

• Article 26

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On The Big Debate

• NEW ABORTION LAW IS STILL BAD
• FOR WOMEN
• Whichever way the referendum will go, abortion
  may still be the only birth control option
  available since many women lack access to
  contraception
• Japheth Mati in STAR Thursday 29 April 2010

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Article 26

• (1) Every person has the right to life.
• (2) The life of a person begins at conception.
• (3) A person shall not be deprived of life
  intentionally, except to the extent authorised by
  this Constitution or other written law.
• (4) Abortion is not permitted unless, in the
  opinion of a trained health professional, there
  is need for emergency treatment, or the life or
  health of the mother is in danger, or if
  permitted by any other written law.

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Implications of Art.26(4) to provision of safe
abortion services

• Art 26(4) implies constitutional recognition of
  legal abortion in Kenya, even though under
  certain specified conditions.
• Health providers have responsibility to ensure
  women have access to what they are legally
  entitled.
• Note Art 26(4) specifies life or health as
  grounds for legal abortion this has expanded
  access to legal abortion beyond what existed in
  Penal Code Section 240, i.e. life only.

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A number of questions arise from Art 26(4)

• Who is a trained health professional?
• What constitutes danger to life or health of the
  mother?
• At what stage is emergency treatment mandatory?
• What definition of health is implied, is it
  WHOs?
• Is there a need for a list of conditions (or
  situations) that may necessitate emergency
  treatment?
• etc.

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Concerns regarding lists

• Lists may provide examples of conditions that are
  considered life-threatening, but must not
  preclude a doctors clinical judgment.
• There is risk of Lists being interpreted
  restrictively, or be considered exhaustive, when
  in fact they cannot be.

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Who among these is implied in trained
health professional?

• Obstetrician Gynaecologist?
• Registered medical practitioner?
• Registered Clinical Officer?
• Registered Nurse?
• Registered Midwife?
• Any health worker trained to competency?
• All of the above?

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Beware, Medical Guidelines may obstruct rather
than facilitate access to legal safe abortion

• Current MPDB guidelines on abortion state
• . it is strongly advised that the practitioner
  consults with at least two senior and experienced
  colleagues, obtains their opinion in writing and
  performs the operation openly in hospital if he
  considers himself competent to do so in the
  absence of a Gynaecologist.
• NOTE
• MPDB does not restrict TOP operation to
  gynaecologists only
• One of the two colleagues is often a
  psychiatrist- usually to establish risk to life

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MPDB guidelines that may obstruct access to safe
abortion services

• Consulting at least two senior and experienced
  colleagues- how feasible in rural areas?
• Restricting abortion procedures to hospitals- TOP
  often an OP procedure, and not always surgical!
• Psychiatric assessment- how available is a
  psychiatrist? fear of psychiatric label
  expensive, causes delay

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Provision of safe abortion services

• WHO defines safe abortion services as those
  provided by trained health workers using proper
  equipment and correct techniques, and supported
  by policies, regulations and a functional health
  infrastructure, including equipment and supplies.

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Conditions for providing safe abortion services
within the law

• Requirements of Article 26(4) are met
• Conditions for WHO definition of safe abortion
  are satisfied
• Under such scenario termination of pregnancy is a
  legal safe medical procedure
• Unsafe abortion implies termination of
  pregnancy outside above conditions

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Factors behind denial of abortion services to
women who are legally entitled to them

• Provider related factors
• Ignorance of the law, negative attitudes and
  biases, and conscientious objection
• Lack of trained workers and/or appropriate
  facilities
• Note Service providers have ethical and legal
  obligations to provide women in need of abortion
  with appropriate information on where safe
  services may be obtained.

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Factors behind denial of safe abortion services
to women who are legally entitled to them contd.

• Medical policies and practices
• Insistence on unnecessary procedures/practices
• Opposition to task-shifting, and other regulatory
  bottlenecks
• Community related factors
• Lack of awareness about facilities providing
  legal abortion services
• Lack of awareness (among women) of need to report
  early in pregnancy

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Is it time for a paradigm shift?

• Attitudes of health workers towards women who
  seek TOP require a paradigm shift
• FROM that of deep-rooted suspicion TO one of
  considerate review of all evidence present in
  order to ensure women are not denied safe
  abortion services to which they are legally
  entitled.
• This is a right provided for under Art 26 (4) of
  the Kenya Constitution.

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Conclusions

• The Constitution of Kenya provides opportunities
  for enhancing health, including RH and rights of
  Kenyan women
• The Constitution of Kenya has established the
  entity of legal abortion, under certain specified
  conditions
• Health care providers must familiarise themselves
  with these constitutional provisions for
  effective implementation of quality RH services,
  and to avoid unwarranted access barriers to
  services that are legally sanctioned.

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Conclusions

• The relevant regulatory authorities and
  professional bodies have a responsibility to
  ensure their members are well updated on the RH
  provisions in the Constitution.
• The medical fraternity has a responsibility to
  advocate for equitable access by all women to
  quality RH services, and to promote positive
  policies which eliminate unnecessary access
  barriers to legal safe abortion services.