By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya)*
Telemedicine has been called the big idea for creating access to healthcare in Kenya. This owes to the fact that almost 70% of the population in Kenya live in rural areas and there are hardly any clinics within walking distance for rural fork. And even where such clinics are available, they are usually staffed with nurses or community health workers who offer very basic services as the doctor to patient level remains low. The question of how to increase access to doctors and maximize the use of time for medical personal is not only a big deal for management of modern hospitals in the city but it is also becoming a matter of urgency for health services providers in remote areas. In fact, the rise of telemedicine will likely lower the need for medical tourism beyond the borders.
As matters stand, telemedicine has been taking root in Kenya, especially with the outbreak of the COVI-19 pandemic. The World Health Organization observes that Information and Communication Technologies (ICTs) have great potential to address some of the challenges faced by both developed and developing countries in providing accessible, cost-effective, high-quality health care services through the use of telemedicine. Telemedicine uses ICTs to overcome geographical barriers, and increase access to health care services. This is particularly beneficial for rural and underserved communities in developing countries – groups that traditionally suffer from lack of access to health care.
The World Health Organization uses the following broad description of the term ‘telemedicine’: “The delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of health care providers, all in the interests of advancing the health of individuals and their communities”. Notably, telemedicine is an open and constantly evolving science, as it incorporates new advancements in technology and responds and adapts to the changing health needs and contexts of societies. Telemedicine episodes may be classified on the basis of: (1) the interaction between the client and the expert (i.e. real-time or prerecorded), and (2) the type of information being transmitted (for example, text, audio, video).
In Kenya, a large portion of the population is unable to have face-to-face consults with medical providers and as a result, much of the care is triaged through community health workers and nurses and only those patients deemed to be in critical need of hospital services are transferred to see a medical provider. This situation is made worse by the fact that there is a shortage of approximately 50% of the needed health care workforce to meet the needs of the population in Africa. Telemedicine and other telehealth services are thus meant to address the very limited access to face-to-face medical consults and high medical cost which can consequently see a reduction in poverty, improved health and well-being, improved education, and economic growth.
In places such as Lamu County, where residents face extremely limited access to healthcare, the residents have now access to care-at-a-distance through the telemedicine project initiated by Huawei, Safaricom and local partners, which allows local healthcare workers and patients to remotely consult with specialists in towns and cities. There is a scarcity of licensed doctors and specialists in Lamu, and telemedicine is expected to transform medical care for low-income families in the region by reducing travel time and expenses; and 50% more patients will attend referrals each year, leading to significantly better patient outcomes. The Philips Foundation, a registered charity and platform for the worldwide societal activities of Royal Philips, has also since introduced mobile ultrasound technology, meant to improve maternal and child health, where ways will be explored to use mobile ultrasound technology at primary care level, performed by midwives and supported by remote experts through telehealth, to enhance availability of affordable services in the underserved communities and remote areas of Kenya.
Indeed, Kenya Medical Practitioners and Dentists Council beginning in 2021 commenced issuing provisional approvals for various registered and licensed health institutions to offer virtual medical services. So far, about 20 health facilities have received approvals from KMPDC to offer telemedicine services in the country. However, the approvals only granted permission for the health facilities to offer virtual consultation health services and are subject to review every three months from date of issue. The move is in response to the growing need for the services due to physical distancing rules imposed by the government to curb the spread of COVID-19.
However, while telemedicine is no longer new in Kenya, the regulators are yet to review the regulatory framework to not only promote its growth and development, but also to ensure that those who use it are either held or benefit from the same standards of professional care as those under the traditional forms of medical care and data protection. Notably, the Health Act, 2017 defines “e-Health” to mean the combined use of electronic communication and information technology in the health Sector including telemedicine. Telemedicine and telehealth services can indeed supplement the investment in physical infrastructure in provision of health care services.
It has been noted that telemedicine is facing challenges due to gaps in implementation of the existing eHealth policy, lack of incorporation of the service aspect of eHealth, thereby not addressing the patient and absent regulation guiding some parts of the service aspect of eHealth, thereby leaving the patient exposed to unregulated practice. Hence, the proposed e-Health regulations were drafted in 2019 which, among others, bar health service providers from hosting the platforms outside Kenya (for data protection) and cover areas of virtual medicine, use of artificial intelligence in health and e-Learning including training of medical personnel and online based continuous professional development (CPD) points. Further, the regulations address establishment of virtual medical facilities prescribing disciplinary measures for any form of misconduct.
In addition to the Health Act, other relevant laws relating to ICT which is a key component of telemedicine regulate aspects of telemedicine or issues that are relevant to it. These acts include the Data Protection Act and the Consumer Protection Act. The laws regulating healthcare and health services providers have also put in place measures to safeguard against quacks taking advantage of technology to practice medicine or provide healthcare services against the law. Still, there is a pressing need for enactment of a unified law which regulates all aspects of telemedicine in Kenya to ensure certainty in regulatory compliance and to give confidence to investors venturing in the area on what to expect.
The issues of data privacy and use and storage of patient information is also need to be addressed to safeguard patients. Presently, data protection and privacy laws protect health data and the Data Protection Act imposes professional confidentiality. The HIV/AIDS Prevention and Control Act also provides for measures that apply in handling data and information relating to HIV status of patients. The problem arises because the use telemedicine exposes health services provisions to risk of cyberattacks which can see health data being hacked for ransom. It thus becomes necessary to put in place specific and dedicated regulations dealing with data protection in telemedicine to guarantee all angles are covered and reassure Kenyans who are concerned about their privacy in using ICT facilities to access healthcare.
There is no question telemedicine is here to stay and offers opportunities for huge saving especially in travelling costs and maximizing healthcare staff in enhancing access to health services in Kenya and beyond. Indeed, telemedicine promises to help in making the right to the highest attainable standard of health available to even more Kenyans. But issues such as language barriers need to be tackled and where necessary dedicated research on how artificial intelligence and machine learning can be adopted to enhance telemedicine offerings should be widely explored. The starting point is to put in place an elaborate legal and regulatory framework for telemedicine to be able to define who is a telemedicine services provide and what is expected of them to serve Kenyans better.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., “Ensuring Healthy Lives and Well-being for All Kenyans,” Available at: http://kmco.co.ke/wp-content/uploads/2020/12/Ensuring-Healthy-Lives-and-Wellbeing-for-All-Kenyans-Kariuki-Muigua-December-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
References
Adler, N.E. and Newman, K., ‘Socioeconomic Disparities in Health: Pathways and Policies’ (2002) 21 Health Affairs 60.
Braveman, P. and Laura Gottlieb, ‘The Social Determinants of Health: It’s Time to Consider the Causes of the Causes’ (2014) 129 Public Health Reports 19.
Dominguez, E., The Right to Health,’ Icelandic Human Rights Centre, Available at: https://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/substantive-human-rights/the-right-to-health (accessed 23/11/2021).
Health Act, No. 21 of 2017, Laws of Kenya.
Kenya Health Policy 2012–2030.
Kiluwa Limited & another v Commissioner of Lands & 3 others [2015] eKLR.
KMPDC, “Report of Technical Working Group to Develop Guidelines and Checklists for Report on the Regulation of Electronic Health Practice in the Country,” Available at:https://kmpdc.go. ke/resources/4.%20Draft%200%20-%20Electronic%20Health%20Regulation.pdf (accessed 23/11/2021).
Mohamed Ali Baadi and others v Attorney General & 11 others [2018] eKLR.
Muigua, K., “Reconceptualising the Right to Clean and Healthy Environment in Kenya.” (2015).
Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
Peter K. Waweru v Republic [2006] eKLR.
Preamble, Constitution of the World Health Organization, Basic Documents, Forty-fifth edition, Supplement, October 2006, pp.1-18.
Shehla Zia v. WAPDA, PLD 1994 SC 693 Justice SALEEM AKHTAR (Supreme Court of Pakistan).
Tomaziu-Todosia M, ‘The Importance of Public Health Policies in the Social-Economic Development of Romania’ (2019) 10 Postmodern Openings 162.
Treaty making and Ratification Act, No. 45 of 2012, Laws of Kenya.
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, E/C.12/2000/4.
UN Commission on Human Rights, Convention on the Rights of the Child, 7 March 1990, E/CN.4/RES/1990/74.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
UN General Assembly, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, A/RES/2200.
UN General Assembly, Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, A/RES/34/180.
WHO, ‘Sustainable Development Goal 3: Health,’ Available at: https://www.who.int/health-topics/sustainable-development-goals#tab=tab_1 (accessed 23/11/2021).
Zalo, M., “The Emerging Practice of Telemedicine and the Law: Kenya’s Stance,” Available at: https://cipit.strathmore.edu/the-emerging-practice-of-telemedicine-and-the-law-kenyas-stance/ 1 (accessed 23/11/2021).
Lawyers1 year ago
News & Analysis3 years ago
News & Analysis3 years ago
Lawyers1 year ago
News & Analysis2 years ago
News & Analysis1 year ago
News & Analysis3 years ago
News & Analysis1 year ago