labour law: the employment contracts and terms implied by common law. part 1

labour law: the employment contracts and terms implied by common law. part 1

labour law: employment contracts and implied terms in a contract

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health rights are key in ensuring patient safety and patient empowerment

“Health rights are key in ensuring patient safety and enhancing patient empowerment.”

 

The preamble of the 1946 World Health Organisation, (WHO) constitution defines health broadly to mean a state of complete physical, mental and social well being of a person and not merely the absence of disease or infirmity.

The constitution further defines the right to health as the enjoyment of the highest attainable standard of health and enumerates some principles of this right as healthy child development, equitable dissemination of medical knowledge and its benefits; and government provided social measures to ensure adequate health.

Article 25 of the United Nations Declaration of human rights 1948 states that everyone has a right to a standard of living adequately for the health and well being of himself and of his family, including food, clothing and medical care and necessary medical services.

Article 16 of the African Charter reiterates the same principle of the highest attainable standard of health.

Furthermore General Comment no.14 which addresses the right to health makes a direct clarification that the right to health is not to be understood as a right to be healthy but instead the right to health is articulated as a set of both freedoms and entitlements which accommodate among other things the individual’s biological and social conditions.

The constitution of Uganda though does not expressly provide for the right to health, it is included in the National Objectives and Directive Principles of State Policy and courts have also make judicial decisions imputing the right to health from other civil and political rights for instance the right to life, freedom from torture and discrimination, right to receive information among others.

Patient refers to health care users, also known as health care consumers and patient rights are seen as a subset of human rights and can be substantive like right to information or procedural for instance a right to complain.

Patient safety is the freedom for a patient from unnecessary harm or potential harm associated with health care.[1] It literally refers to a collective term which refers to strategies and protocols to minimize the risk of harm occurring to patients. Every year an estimated one million patients die in hospitals across the world because of avoidable clinical mistakes.

Thesaurus dictionary defines empowerment as the exertion of a strong influence or control over others in a variety of settings. Patient empowerment could therefore be defined as the process by which patients gain more control over their health and health care.

The Ministry of Health in a bid to promote patients awareness developed Patients’ Charter[2], which outlines patients’ rights and responsibilities. The rights in the Charter include: the right to medical care; prohibition of discrimination; participation in decision making; confidentiality and privacy; informed consent; and refusal of medical treatment and these rights are 19 in number listed in the Charter. The responsibilities of the patient include provision of information; compliance with instructions; and respect and consideration of other patients and health workers.[3] The discussion below highlights health rights and how these rights ensure patient safety and enhances patient empowerment:

The right to information about the safety and quality of health services:

Article 41 of Uganda constitution provides that every person has a right to receive information even that in the hands of the government. This being a civil right has seen courts giving it interpretation to include right to health and health rights.

For instance in the case of The Center for Health, Human Rights and Development (CEHURD) and others V. the executive director Mulago National referral hospital and AG, court held that there was a violation of article 2 (a) & (b) of the protocol to the African Charter on Human and Peoples Rights of women in Africa which requires state parties to keep appropriate measures to provide adequate, affordable and accessible health services, including information, education and communication programs to women especially those in rural areas and now days the rampant development of slums in Uganda whose occupants require medical attention.

 

Communication between patients and health care providers, and the barriers many Ugandan patients face in this regard, has an important impact on quality, cost, and patient safety and may lead to misdiagnosis and inappropriate treatment leading to longer stays in hospitals or death. Therefore by upholding this right a change can be created and patients empowered.

Similarly in CEHURD V. Nakaseke District Local Government[4], the case was brought on behalf of a pregnant woman while awaiting obstetric care died in a hospital. It considers whether the hospital failed to provide appropriate obstetric and management thereby violating her rights as well as those of her surviving children. This case establishes principle that Ugandans can sue health workers for medical negligence and offers a mechanism to demand accountability from the government as to how it is investing in social and economic rights such as health care. Therefore such civil rights have been interpreted to include health right for the protection and empowerment of patients.

 

The right to informed consent and a patient to be given adequate and accurate information about the nature of their illness, diagnostic procedures and the proposed treatment for one to make a decision that affects one of these elements helps patients to make informed medical decisions hence ensuring patient safety and empowerment. The information should be communicated to the patient at the earliest possible stage in a manner that he/she is expected to understand in order to make a free, informed, and independent choice. However in certain situations the doctor may withhold the information where he believes that it will cause harm to the physical and mental wellbeing of a patient.

Treatment against a patient’s will may be provided under the following circumstances:[5]

  • If the patient has received information as required to make an informed choice.
  • If the treatment is anticipated to significantly improve the patient’s medical condition.
  • If there are reasonable grounds to suppose that after receiving treatment, the patient will give his/her retrospective consent.

Consent provides legal justification of care to avoid allegations of committing the tort of trespass to the person; Consent represents the legal and ethical expression to one’s autonomy and self-determination.

In the South African case of Christian Lawyers Association v Minister of Health and Others, the High Court considered informed consent in the context of termination of pregnancy. The court stated that the concept forms the basis of the doctrine of volenti non fit injuria that justifies conduct that would otherwise have constituted a delict if it took place without a victim’s informed consent. All this is aimed at promoting the health wellbeing of a person.

 

The right to medical care:

The UNESCO Declaration aims at the promotion of equitable access to medical, scientific and technological developments as well as the greatest possible flow and the rapid sharing of knowledge concerning those developments and the sharing of benefits with particular attention to the needs of developing countries.[6] The Declaration calls for respect of human dignity, autonomy, consent and other human rights and the need to maximize benefits and minimize harm to patients, research participants, and other affected individuals.[7] It recognizes the ethical principle of respect for persons including patients.

In Nalwendo Vs Attorney General,[8] the plaintiff was shot by a policeman in kajjansi and taken to Mulago hospital for treatment but that to date; the hospital has declined to give her a medical report. In defense the defendant denied liability and averred that the Uganda Police Force paid for antenatal services and medication until her recovery and discharge from Mulago hospital after delivery of her baby. Court held that the defendant should pay the plaintiff medical expenses to go for further treatment in India since such medication is not available in Uganda. This decision ensured her safety especially from itching scars and she would get better treatment in India.

 

In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 (12 May 2017), it was the patient’s case that the doctor was negligent in: (i) failing to take an adequate history and (ii) failing to conduct an adequate examination…the history taking was not carried out to the standard to be expected of a competent SHO is inevitable. The doctor was in breach of duty and negligence is established. The court considered standard of care of hospital doctors in the context of their function and grade. This decision and many others act as deterrence to the doctors for fear of court actions and heavy penalties imposed on them hence ensuring patient safety and empowerment.

Prohibition of discrimination:

The Collins English Dictionary and Thesaurus defines the word “discrimination” as follows, “The singling out of a particular person, group, etc. for special favor or disfavor…” in case of medical care this involves discriminating patients and denying some individuals health rights especially those from poor economic ground. These health rights therefore protect patients from such kind of discrimination and despite their economic and social status. This guarantees patient safety and empowerment due to the fact that they are assured of treatment whenever necessary.

 

The Equal Opportunities Act 2007 ensures that no patient’s health rights are violated hence their safety from hospitals and it provides guidelines of redress including causing appearance to their tribunal over any form of discrimination against any person in need of medical treatment. This means that all persons despite their status, gender, religion are empowered to access medical treatment without any fear and in the exercise of their health rights.

The existence of racial and ethnic disparities in health and health care has not been well documented in Uganda. In USA, Institute Of Medicine, IOM’s Unequal Treatment was the first major report to highlight that in addition to racial and ethnic disparities in health, there is evidence of racial and ethnic disparities in health care. Patient safety efforts are now a central component of efforts to improve the quality of care for all patients. However, the role of language barriers and its impact on adverse events is less well documented. Health right are there meant to remedy such problems by relaying information to the patients in a clear and precise manner.

 

The right to participation of patients in decision making:

Patient safety is about designing strategies to protect patients from harm. It is a discipline on how to make patients safer. Patient participation in decision making leads to safe investigative space in case of any negligence, it reaffirms the statutory duty of candor on part of doctors and it rejuvenates the health care safety investigation branch.[9] The patients no longer fear to bring up their claims against hospitals for violation of their health rights.

Patient participation also leads to transparency and better and efficient communication with authorities especially the doctors.

Patient participation is a major patient safety culture right to ensure that health and social care services provide people with safe, effective, compassionate and high-quality care. It encourages medical care service providers to be on an upward trajectory of improvement and at the same time protecting and empowering patients and the community at large.

The health right to confidentiality and privacy in ensuring patient safety and empowerment:

The Institute of Medicine (IOM) (USA) report[10]states that patients should not be harmed by the care that is intended to help them, and they should remain free from accidental injury.

Confidentiality in health care refers to the obligation of professionals who have access to patient records or communication to hold that information in confidence.  Rooted in confidentiality of the patient-provider relationship that can be traced back to the fourth century BC and the Oath of Hippocrates, this concept is foundational to medical professionals’ guidelines for confidentiality and protection of patient safety.[11]

An example is the landmark Jaffee v. Redmond decision where the U.S. Supreme Court upheld a therapist’s refusal to disclose sensitive client information during trial (Beyer, 2000). In writing the majority opinion, Justice Stevens said:

Effective psychotherapy… depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure…The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.[12]

The confidentiality provisions will improve patient safety outcomes by creating an environment where providers may report and examine patient safety events without fear of increased liability risk.  Greater reporting and analysis of patient safety events will yield increased data and better understanding of patient safety events.

Privacy, as distinct from confidentiality, is viewed as the right of the individual client or patient to be let alone and to make decisions about how personal information is shared.

The Supreme Court’s holding in Whalen v. Roe addressed the notion of balanced interest.  In saying “disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice”, the court did not give individuals absolute control over sharing of their own health information.

This empowers patients to disclose their problems to doctors because they expect reciprocal duty of privacy from the doctors whereby if such information is disclosed it may lead to discrimination from the public and self hate by the patient.

The health right to healthy and safe environment:

Finally the right to healthy and safe environment can be read from article 39 of the Ugandan constitution and it is as well listed by the Charter to be observed and respected as a healthy right aimed at protecting patient safer and empowerment.

The healthy facilities are in sorry state and do not conform to healthy and safe environment standards. Some patients sleep on the floor after giving birth exposing them to more dangers of infections. Other hospitals with structures have no source of power to enable both operations at night as well as running of necessary equipments like refrigerators.

This has further exposed the lack of political will to improve our health sector and in total violation of international obligations like the Abuja Declaration of committing 15% of the budget to health sector. Patients have now developed a belief that whatever is provided is a favor from government and yet they are entitled to such services as of right.

It should however be noted that in certain circumstances these rights undermine patient safety and empowerment. For instance in Re T patient refused blood transfusion citing religious grounds in which case doctors had to respect the patient’s rights at the expense of putting the patient’s life in danger.

 

Similarly in Medical and Dental Practitioner tribunal V. Okwonkwo, patients refused blood transfusion citing the book of Leviticus in the Bible that man shall not take blood. The wife died and the doctor battled with proceedings for almost six months before being set free on appeal.

These decisions are based on established law for instance in Sideway V. Bethlehem Hospital, it was held that a patient can refuse treatment for rational, irrational or no reason at all if they are mentally capable. This however has not greatly impacted n doctors that go a head and prescribe treatment to save life. For example in the case of Njareketa where a doctor amputated a leg of the patient to stop further affecting the whole body, court on appeal awarded her a mere 1 cent after deliberating on the circumstance of the case.

Recommendations

From the foregoing discussion I therefore recommend the following to be done in order to promote healthy rights and patient safety:

  • The Ministry of Health should establish and extensively publicize guidelines for patients to report cases of violation of their health rights.
  • The Ministry should also enhance legal education of health workers and citizens, and provide legal assistance to abused patients.
  • Inadequate resources for health promote unethical practices such as health workers demanding illegal fees and thus propagating the abuse of health rights.
  • The Ministry should commit more funds to ensure availability of basic resources for implementing health rights issues, and improve supervision of health workers.[13]

Conclusion

The realization of health rights in resource-constrained and patient-burdened public health care settings in Uganda remains an obstacle towards quality health care delivery, health care-seeking behavior and health outcomes.

Although the Uganda Patients’ Charter of 2009 empowers patients to demand quality care, inequitable access and abuse remain common. For instance in 2013, “African Journal of Primary HealthCare and Family care”, carried out research at Mulago Hospital assessing “the Awareness of, responsiveness to and practice of patients’ rights at Uganda’s national referral hospital.”

 

The results showed that at least 36.5% of patients faced a challenge regarding their rights whilst seeking health care. Most of the patients (79%) who met a challenge never attempted to demand their rights. Most patients (81.5%) and health workers (69.4%) had never heard of the Uganda Patients’ Charter. Awareness of patients’ rights was significantly higher amongst health workers (70%) than patients (40%). Patients’ awareness was associated with education level, employment status and hospital visits.

The results further indicate that Patients feel powerless to negotiate for their rights and fear being discriminated against based on their ability to bribe health workers with money to access care, and political, socio-economic and tribal status.

Unfortunately systems of checks and balances on the practice of health rights at the hospitals remain unclear to both patients and health workers, contrary to provisions in the Constitution that the State will take all efforts to ensure provision of health services to its population. This situation has led to many deaths in Uganda resulting from clinical mistakes or situations that could be prevented. It has also affected the lives of women by failing to provide adequate Emergency Obstetric Care services leading to countless casualties.

[1] Exploring patient participation in reducing health care related risks, WHO 2013

[2] Ministry of health patient charter 2009

[3] B.K Twinomugisha, ‘’Fundamentals of health Law  in Uganda’’ (2015) Pretoria University Law Press, pp 192-229

[4] Civil suit no. 11 of 2012

[5] Article 12 b & c of the patients Charter

[6] Article 2(f)

[7] Articles 3-6

[8]Civil suit no. 70 of 2013 [2017] UGHCCD 103 (13 July 2017).

[9]John Tingle, Associate Professor Nottingham Law School, “Reverse Innovation and Patient Safety in transitioning and Developing countries”

[10] ‘’To Err is Human: Building Safer Health System’’

[11] Valerie Prater, University of Illinois at Chicago, “Confidentiality, Privacy and Security of health information: Balancing interests “December 8, 2014.

[12]Jaffee v. Redmond, 1996, p. 9.

[13] “African Journal of Primary Health Care and Family care “research at Mulago Hospital assessing “the Awareness of, responsiveness to and practice of patients’ rights at Uganda’s national referral hospital.”

acts of parliament in Uganda: the Companies Act 2012

THE COMPANIES ACT, 2012.THE EAST AFRICAN EXCISE MANAGEMENT (AMENDMENT) ACT, 2012THE EXCISE TARIFF (AMENDMENT) ACT 2012THE FINANCE ACT 2006 (AMENDMENT) ACT 2012THE INCOME TAX (AMENDMENT) ACT, 2012.THE PREVENTION AND PROHIBITION OF TORTURE ACT, 2012.THE TRANSFER OF CONVICTED OFFENDERS ACT, 2012.THE UGANDA NATIONAL METEOROLOGICAL AUTHORITY ACT, 2012.THE VALUE ADDED TAX (AMENDMENT) ACT 2012

Health law group discussion 2017

LLB4 Makerere University Law School.

By NATUMANYA BRIGHT[1]

Question:

With close reference to judicial decisions from Uganda and other jurisdictions show how an expanded interpretation of some civil and political rights can promote the right to health care.

Introduction

As human beings, our health and health of those we care about is a matter of daily concern.[2] Regardless of our age, gender, socio-economic, or ethnic background, we consider our health as our most basic and essential asset.

The right to health is a fundamental part of our human rights and of our understanding of a life in dignity. The right to the enjoyment of the highest attainable standard of physical and mental health, to give it its full name, is not new, internationally, it was first articulated in the 1946 world health Organisation (WHO) whose preamble defines health as “ a state of complete physical, mental and social well being and not merely the absence of disease or infirmity.”

The preamble further states that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”

The 1948 Universal Declaration of Human Rights (UDHR) also mentioned health as part of the right to an adequate standard of living (article 25). The right to health was again recognised as a human right in the 1966 International Covenant on Economic Social and Cultural Rights (ICESCR).

In Uganda the 1995 constitution stipulates various provisions for the right to health, for instance:

Under the objectives there is objective (i) that calls upon all organs and agencies of the state, all citizens, and organisations to implement the objectives.

Objective (xx) that provides that the state shall take all practical measures to ensure the provision of basic medical services to the population.

Objective (xxi) that the state shall take all practical measures to promote a good water management system at all levels.

Objective (xxii) further states that the state shall take appropriate steps to encourage people to grow and store adequate food; establish national food reserve; encourage and promote proper nutrition through mass education.

These objectives are now justiciable by virtue of the constitutional amendment adding article 8 making them justiciable.

In article 20 proclaims that fundamental and other human rights and freedoms are inherent and not granted by the state and they shall be promoted by all organs and agencies of the government and by all persons.

Article 21 states that all persons are equal before and under the law. Article 22 no person shall be deprived of the right to life intentionally except in execution of a sentence pronounced by courts of law.

Article 23 states that no person shall be deprived of personal liberty except for purpose of preventing the spread of an infectious or contagious disease… or for a person of unsound mind or addicted to drugs or alcohol for the purpose of care or treatment.

Article 24 goes further to state that there should be respect for human dignity and protection from inhuman treatment or degrading treatment or punishment.

Article 34(3) states that no child shall be deprived by any person medical treatment , education or any other social or economic benefit by reason of religion or other beliefs.

WHAT IS THE RIGHT TO HEALTH?

In order to link court’s interpretation of civil and political rights to include the right to health, we need to understand the Key aspects of the right to health. The right to health is an inclusive right. The committee on Economic Social and Cultural Rights calls the following the underlying determinants of health:

  • Safe drinking water and adequate sanitation
  • Safe food
  • Adequate nutrition and housing
  • Healthy working and environmental conditions
  • Health-related education and information
  • Gender equality.

The right to health contains freedoms. These freedoms include the right to be free from non consensual medical treatment such as medical experiments and research or forced sterilization and to be free from torture and other cruel inhuman or degrading treatment or punishment.

The right to health contains entitlements. These entitlements include the right to a system of health protection providing equality of opportunities for everyone to enjoy the highest attainable level of health.

  • Access to essential medicine.
  • Maternal, child and reproductive health.
  • Equal and timely access to basic health services.[3]

 

Claiming health law in courts.

The constitution allows any person who claims that his/her right has been violated to seek redress from court, including compensation.[4]

The committee on ESCR has also stressed that any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels.[5]

The case of The Environmental Action network (TEAN) v. Attorney general and National Environmental Authority is a locus of locus standi that bringing application under article 50(2) on behalf of non smoking public to protect their right to clean and health environment.

It was held that the organisation can bring public interest action and overruled 45 days notice to government before suing them.

The limits of the right not to be denied access to treatment was considered in the case of Soobramoney v. Minister of Health (Kwazulu Natal) where the appellant argued that the denial of treatment (dialysis) for renal failure was a violation of his right to life and the right to access health care services. However much the court did not decide in his favour because of the huge costs involved, it can be relied on to advance the cause of access to EMoC, Emergence Obstetric Care.

In Purohit and Another v The Gambia (2003) AHRLR 96 (ACHPR 2003)

Communication 241/2001, Purohit and Moore v The Gambia  

Decided at the 33rd ordinary session of the African Commission, May 2003, 16th Annual Activity Report

Cruel, inhuman or degrading treatment (degrading language, 58, 59, 61)

Health (special measures for mental health patients, 80-83; progressive realisation, 84)
Complaint against the consonance of the Lunatics Detention Act with human rights standards

Summary of facts

  1. The complainants are mental health advocates, submitting the communication on behalf of patients detained at Campama, a psychiatric unit of the Royal Victoria Hospital, and existing and ‘future’ mental health patients detained under the mental health acts of the Republic of The Gambia.

The complainants submit that the provisions of the Lunatics Detention Act (LDA) condemning any person described as a ‘lunatic’ to automatic and indefinite institutionalisation are incompatible with and violate articles 2 and 3 of the African Charter. Section 2 of the LDA defines a ‘lunatic’ as including ‘an idiot or person of unsound mind’.

The complainants argue further that to the extent that mental illness is a disability, 4 the practice of detaining persons regarded as mentally ill indefinitely and without due process constitutes discrimination on the analogous ground of disability.

The complainants further submit that the legislative scheme of the LDA, its implementation and the conditions under which persons detained under the Act are held, constitute separately and together violations of respect for human dignity in article 5 of the African Charter and the prohibition against subjecting anybody to cruel, inhuman or degrading treatment as contained in the same Charter provision.

Article 5 of the African Charter provides:

Every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.

The complainants submit that the scheme and operation of the LDA both violate the right to health provided for in article 16 of the African Charter when read with article 18(4) of the African Charter.

. Article 16 of the African Charter provides:

  1. Every individual shall have the right to enjoy the best attainable state of physical and mental health 2. State parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

Holding inter alia

The African Commission commends the respondent state’s disclosure that there is no significant shortage of drug supplies at Campama and that in the event that there are drug shortages, all efforts are made to alleviate the problem. Furthermore, that it has taken steps to improve the nature of care given to mental health patients held at Campama. The respondent state also informed the African Commission that it is fully aware of the outdated aspects of the LDA and has therefore long taken administrative steps to complement and/or reform the archaic parts of the LDA. This is however not enough because the rights and freedoms of human beings are at stake. Persons with mental illnesses should never be denied their right to proper health care, which is crucial for their survival and their assimilation into and acceptance by the wider society.

This case is a clear example of interpreting civil and political rights to include the right to health.

In Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)

Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria

Environmental degradation and health problems caused by oil production activities

Health (state should not carry out, sponsor or tolerate measures violating the integrity of the individual, 52; right to be informed of hazardous activities, 53, 71)

Peoples’ right to disposal of wealth and natural resources (45, 55-58)

Shelter (implicit right in Charter, destruction of homes, evictions, 59-63)

Food (implicit right in Charter, 64-66)

Life (arbitrary deprivation, 67)

Summary of facts

  1. The communication alleges that the military government of Nigeria has been directly involved in oil production through the state oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations have caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni people.

Holding inter alia

The right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation. The African Charter and international law require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens. Without touching on the duty to improve food production and to guarantee access, the minimum core of the right to food requires that the Nigerian government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples’ efforts to feed themselves.

 

 

CEHURD v. Mulago Referral hospital 212 of 2013

This decision is important as the Court clearly indicates State’s obligations under national, regional and international law to guarantee rights to health and information as well as rights to be free from cruel, inhuman and degrading treatment.

The decision specifies that the hospital has an obligation to provide free and easy access to information about the couple’s baby and failure to provide such information violates their right to access information under article 41 of the Constitution. Importantly, the Court states that whether the baby was alive or not does not diminish the parent’s entitlement to information.

The decision also outlines the State’s obligations to respect, protect, promote and fulfil the right to health which includes positive obligations to ensure everyone knows their rights and has access to them. The right to health is recognized as the opportunity to enjoy the highest attainable level of health, not simply the absence of disease.

CEHURD V. Nakaseke District Local government civil Suit No. 11 of 2012

The case was brought on behalf of a pregnant woman who died in a hospital while awaiting obstetric care. It considers whether the hospital failed to provide appropriate obstetric care and management, thereby violating her rights as well as those of her surviving children.

This case establishes a precedent that Ugandans can sue health-workers for medical negligence and offers a mechanism to demand accountability from the government as to how it is investing in social and economic rights such as health.  This is important given that sixteen Ugandan women die in child birth daily due to preventable causes [Uganda Demographic and Health Survey, 2007, p. 282] Many of these deaths could be avoided if the government prioritized health sector investments to ensure retention and motivation of health workers.

Furthermore, this decision also establishes a precedent that Ugandans can use human rights arguments to address medical negligence.

It is to be noted that the Ugandan Constitution does not provide for the right to health. By declaring that emergency obstetric care is justiciable under the Ugandan Constitution, the decision constitutes a significant step towards establishing the right to health in Uganda. This case is in keeping with certain current developments in Uganda relating to economic, social and cultural rights (ESCR) and the Ugandan Constitution. Consider that, on 29th May, 2015, the Initiative for Social and Economic Rights (ISER), a member of ESCR-Net’s strategic litigation working group, led other organizations to appear before the Legal and Parliamentary Affairs Committee of the Ugandan Parliament. This group argued for the incorporation of all ESCRs in the Bill of Rights under the Constitution. Their effort was supported by several fellow members of ESCR-Net’s Strategic Litigation Working Group including, the International Commission of Jurists, Amnesty International, Hakijaami, Center for Reproductive Rights, Legal Resources Centre and the Programme on Human Rights and the Global Economy. It may be hoped that through cases such as this one and also through civil society efforts, ESCR may be more fully realized in Uganda.

 

CONCLUSION

In conclusion therefore judicial decisions in Uganda and elsewhere that are not solely brought for or under the right to health are seen being interpreted to include and expound the right to health for instance in case of violation of environment affecting food production, fresh air, water sources among others and political actions that affect people’s well being and dignity.

 

 

 

 

[1] Law student at Makerere university

[2] Factsheet 31

[3] Many and other important characterics of the right to health are classified in general comment no.14 (2000) on the right to health adopted by the committee on ESCR.

[4] Article 50(1)

[5] Ben Kiromba Twinomugisha, Fundamentals of Health Law in Uganda, School of Law Makerere University 2015.