Duale accuses hospitals of blaming SHA despite regular claim payments

Kenya's healthcare landscape is undergoing a significant transformation with the operationalization of the Social Health Authority (SHA) and the Social Health Insurance Act, 2023 (SHIA), which replaced the National Health Insurance Fund (NHIF) on October 1, 2024. Despite the government's efforts to ensure universal health coverage and timely claim payments, Health Cabinet Secretary Aden Duale has raised concerns about healthcare facilities allegedly denying patients treatment while using the SHA as a pretext. This article examines the legal framework underpinning the SHA, the rights of patients under Kenyan law, and the obligations of healthcare providers, highlighting the potential legal ramifications for facilities that unlawfully refuse services, particularly emergency care, in contravention of constitutional and statutory provisions.

The Kenyan healthcare system is currently navigating a pivotal transition, marked by the establishment of the Social Health Authority (SHA) and the enactment of the Social Health Insurance Act, 2023 (SHIA). This legislative overhaul, which saw the SHA officially replace the long-standing National Health Insurance Fund (NHIF) on October 1, 2024, aims to achieve universal health coverage by providing comprehensive health insurance to all Kenyan citizens and residents. The new framework is designed to streamline health financing and ensure equitable access to quality healthcare services across the nation.

However, this ambitious reform has not been without its challenges. Recently, Health Cabinet Secretary Aden Duale publicly accused certain healthcare facilities of exploiting the transition by denying patients treatment, purportedly blaming the SHA for payment issues, even when claims have been duly settled by the government. This allegation brings to the fore critical legal and ethical questions regarding patient rights, the contractual obligations of healthcare providers, and the enforcement mechanisms within Kenya's evolving health regulatory environment. The integrity of the universal health coverage agenda hinges on the adherence of all stakeholders to the established legal and operational protocols.

This article delves into the legal underpinnings of patient rights and healthcare provider obligations in Kenya, particularly in the context of the new social health insurance scheme. It will analyze the relevant constitutional and statutory provisions that safeguard access to healthcare, examine the operational framework of the SHA, and discuss the potential legal liabilities for healthcare facilities that fail to uphold their duties. The aim is to provide legal professionals with a comprehensive understanding of the current legal landscape and its implications for healthcare service delivery.

The right to health in Kenya is a fundamental human right enshrined in Article 43(1)(a) of the Constitution of Kenya, 2010, which guarantees every person the right to the highest attainable standard of health, including the right to healthcare services. Furthermore, Article 43(2) explicitly states that no person may be denied emergency medical treatment. These constitutional provisions are operationalized by the Health Act, 2017, which elaborates on various patient rights and healthcare provider responsibilities. Notably, Section 7 of the Health Act, 2017, reinforces the right to emergency medical treatment, stipulating that such treatment must be administered regardless of the patient's ability to pay. Failure to provide emergency medical treatment when able to do so constitutes an offense, liable to a significant fine.

The Social Health Insurance Act, 2023 (SHIA), enacted on November 22, 2023, and operationalized on October 1, 2024, repealed the National Health Insurance Fund Act, 1998, and established the Social Health Authority (SHA). The SHA is mandated to manage three distinct funds: the Primary Healthcare Fund, the Social Health Insurance Fund (SHIF), and the Emergency, Chronic, and Critical Illness Fund (ECCIF). All Kenyan residents are required to register as members of the SHA, with employed individuals contributing 2.75% of their gross monthly income to the SHIF, subject to a minimum of KES 300 and no upper ceiling. The transition from NHIF to SHA has been a complex process, with the government allocating funds to clear verified outstanding claims owed to healthcare facilities by the defunct NHIF.

The allegations by Cabinet Secretary Aden Duale highlight a critical tension between the aspirational goals of universal health coverage and the practical realities of healthcare service delivery. The legal framework in Kenya unequivocally protects a patient's right to health and emergency treatment. Article 43 of the Constitution of Kenya, 2010, coupled with Section 7 of the Health Act, 2017, places a clear obligation on healthcare providers to offer emergency medical treatment without preconditions, including payment. The Health Act, 2017, even prescribes penalties for non-compliance, demonstrating the seriousness with which the state views the denial of such critical services.

The establishment of the SHA and its associated funds, particularly the Emergency, Chronic, and Critical Illness Fund (ECCIF), is specifically designed to address financial barriers to emergency care. The SHA CEO, Dr. Mercy Mwangangi, has clarified that emergency treatment should be provided even to individuals not registered or up-to-date with SHA payments, with the SHA covering costs for the initial 24 hours in an emergency center. This legal and policy position directly contradicts any hospital's claim that non-payment by SHA justifies denying emergency services. Hospitals that are contracted by the SHA and receive regular claim payments are legally and contractually bound to provide services to registered beneficiaries. The process for cashless claims, where the insurer settles bills directly with the hospital, is a standard practice in medical insurance, implying that once a claim is approved, the financial responsibility shifts from the patient to the insurer.

Challenges in the transition from NHIF to SHA, such as reported delayed payments to healthcare providers and confusion regarding the new system, have been acknowledged. However, these operational issues, while significant, do not legally absolve healthcare facilities of their fundamental duty to provide care, especially emergency treatment. The government's commitment to clear outstanding NHIF debts, as evidenced by the allocation of Sh4 billion in the 2025/26 financial year, further underscores the intent to stabilize the financial ecosystem for healthcare providers. Therefore, using the SHA as an excuse to deny treatment, particularly when payments are being made, could expose hospitals to legal action for breach of statutory duty, breach of contract (with SHA), and potentially constitutional violations.

From a comparative perspective, many jurisdictions globally impose strict obligations on hospitals to provide emergency care irrespective of a patient's insurance status or ability to pay. This is often rooted in human rights principles and public health imperatives. The Kenyan framework, with its constitutional entrenchment of the right to health and specific legislative provisions, aligns with these international best practices. The issue, therefore, appears to be one of compliance and enforcement rather than a gap in the legal framework. The Cabinet Secretary's intervention suggests a need for stricter oversight and potentially more robust enforcement mechanisms to ensure hospitals adhere to their legal and ethical obligations under the new social health insurance scheme.

The accusations leveled against healthcare facilities by the Cabinet Secretary for Health underscore a critical juncture in Kenya's journey towards universal health coverage. While the transition to the Social Health Authority (SHA) and the Social Health Insurance Act, 2023, represents a monumental step forward, its success hinges on the unwavering commitment of all stakeholders, particularly healthcare providers, to uphold their legal and ethical duties. The constitutional right to health and the statutory right to emergency medical treatment are non-negotiable, and any denial of these services, especially under the pretext of insurance payment delays when claims are being settled, is a serious breach of law.

Practitioners must advise healthcare facilities on the stringent legal obligations under the Constitution of Kenya, 2010, and the Health Act, 2017, emphasizing the severe penalties for denying emergency treatment. Furthermore, they should guide facilities on navigating the SHA's claims process efficiently to avoid legitimate payment disputes, while reiterating that operational challenges do not justify withholding essential services. Moving forward, legal professionals should closely monitor the enforcement actions taken by the Ministry of Health and the SHA, as well as any judicial interpretations that may further clarify the responsibilities of healthcare providers within this evolving framework. The integrity of Kenya's universal health coverage vision depends on ensuring that every patient receives the care they are entitled to, without arbitrary denial.