18th November 2021: The High Court in Nairobi has ruled that failure by a hospital to provide a patient access to medical records is a violation of the right to access information. In a judgment delivered on 18th November 2021, Justice H. Ong’udi ruled that Nairobi Women’s Hospital violated Article 35 of the Constitution when it failed to provide the petitioner with her full medical records, as she had requested. The court awarded the petitioner one million shillings for this violation in redress.
The petitioner had, in November 2018, written to Nairobi Women’s Hospital seeking to be provided with her medical records, including clinical notes, nurse’s notes, nursing kardex, signed consent forms and theatre operation notes. However, the hospital failed to provide her with the records, stating that her medical file was missing. This is despite the petitioner making the request barely five months after receiving services at the facility.
This failure prompted the petitioner to seek the intervention of the Commission on Administrative Justice. In a determination made on 6th September 2019, the Commission ordered the Chief Executive Officer of Nairobi Women’s Hospital to ensure the petitioner accesses her medical records. However, the hospital did not comply. This prompted the petitioner to move to the High Court. The petitioner was represented at the High Court by a human rights lawyer, Timothy Wafula of KELIN.
In the Judgment, Justice H. Ong’udi held that the hospital contravened the law when they did not issue the petitioner the full information she sought. The court concurred with previous decisions to the effect that “the right to information is not affected by the reason why a citizen seeks the information.”
The Court further affirmed that the Commission on Administrative Justice is a Commission within the meaning of Chapter Fifteen of the Constitution. And that it has jurisdiction under the Access to Information Act, 2016, to make orders against both public entities and private bodies with respect to access to information held by such entities and bodies.
Moving forward, KELIN will continue utilizing Article 35 of the Constitution and the Access to Information Act, 2016 to hold both State and Non-State actors accountable. Further, KELIN will share this judgment with the Kenya Medical Practitioners and Dentists Council (KMPDC) to consider dissemination to health care professionals.
“This decision is a strong affirmation of the right of people to access information. It reaffirms that indeed rights are interrelated, with the right to access information critical in the enjoyment of the right to health. It is a decision that effectively puts on notice health facilities, whether public or private, that routinely refuse to provide their patients access to their medical records and information. The right to access information is an enabling right, and we are glad that the courts now appreciate the need to protect it.”
Timothy Wafula, Advocate for the Petitioner.
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For more information, please contact:
Timothy Wafula | Health Governance
Kuwinda Lane,off Langata Road, Karen C
P O Box 112 – 00202 KNH Nairobi
Tel: 020, 2515790 │Mobile: +254 726 419 173
E-mail: twafula@kelinkenya.org
Website: www.kelinkenya.org
