Counties to run key hospitals, judges rule

Court of Appeal judge Martha Koome.

The Court of Appeal has dismissed a case seeking the transfer of level two to six hospitals from county management to the national government.

The case filed by activists Okiya Omtatah, Wycliffe Gisebe and supported by the Kenya Medical Practitioners, Pharmacists and Dentists Union (KMPPDU) faulted the government’s move to classify Kenyatta National Hospital and Moi Teaching and Referral Hospital as the only national hospitals ought to be run by the State.

Okiya and the doctors complained that the State had unconstitutionally dismantled and transferred national health referral facilities from the national government to the county governments and had created chaos to the already set referral system.

They maintained that the transfer of level 2 to level 5 hospitals to the devolved units could only be done through an amendment of the Constitution, as provided for under Articles 255, 256, and 257 of the Constitution.

However, Court of Appeal judges Martha Koome, Hannah Okwengu and Sankale ole Kantai, while dismissing the appeal, found the law does not refer or classify hospitals but the services offered in such institutions.

They found that the government is only required to transfer its functions to the counties through consultations and public participation.

“Neither the Fourth Schedule nor the Constitution makes any reference to the classification of hospitals. From the submissions made, the appellants (Omtatah and Gisebe) relied on the classification of hospitals as formerly existing in the former system of the central government and local authorities,” the judges observed.

The activists and doctors argued that instead of dismantling the national referral system, the government should strengthened coordination between the various levels to have an effective referral mechanism as a key element for the delivery of health care.

They argued that the distribution of functions of the two levels of governments as envisaged under the Constitution was meant to augment the national referral health system by creating a modern primary health care system administered locally within each county, without dismantling the national health referral system or replacing it with a county-based system.

This, the court heard, was in accordance with the World Health Organization’s (WHO) definition of a referral system.

KMPPDU in its case argued that levels four, five, and six hospitals overlap in the services they deliver since they tend to serve multiple counties, and thus, the transfer of these hospitals to the devolved units affected the seamless management and administration of the national referral system.

The Attorney General opposed the petition arguing that interpretation of the phrases national referral health facilities and county health facilities was narrow and defeats the purpose of devolution and that to adopt the interpretation given by the activists and doctors would defeat the decentralisation of the State organs.

The AG urged that only two facilities, KNH and MTRH, qualify the description of national referral health facilities, and both were established by a consultative process as the only national referral hospitals. The remaining health facilities, he said, were listed as other hospitals.

He argued that the definition and classification sought from the court was not in tandem with government policy, which through the Ministry of Health, National Health Sector Strategic Plan 1999-2004, acknowledged health facilities as hierarchical and identifies KNH as the apex of the referral system. 

According to the AG, level two to level three facilities are listed to include dispensaries, health centres, maternity or nursing homes that offer preventive care as well as some curative services. Level four to level six hospitals are listed as primary, secondary and tertiary hospitals, which mainly offer curative and rehabilitative services.

The AG maintained that the classification of these hospitals was not based on any geographical zoning but on the level of services that each facility was providing.