By Seth Nimwesiga
This concept of business or human rights has attracted attention over the recent years alongside capitalism. It recognizes that businesses should be accountable for their actions. That they have a responsibility to respect human rights and to ensure that any risks against human rights arising out of their operations are prevented, addressed or mitigated.
Over the years, CEHURD has documented cases where business owners under the ambit of private health facilities detain patients for failure to pay medical bills. First, Patrick Obiga who in 2016 was involved in an accident and was rushed to International Hospital Kampala for emergency treatment. His family was able to pay twenty million shillings (20 million) of the thirty-eight million shillings charge, leaving a total of eighteen unpaid, and he was detained as a result. Following CEHURD’s interventions, Patrick was let go by the facility.
We assumed at the time that the media attention had sent a message to the facilities, but to our surprise, in 2022 another facility continued the practice that led CEHURD to engage the courts of law.
The High Court of Uganda delivered a landmark judgement against the detention of patients in private health facilities for non-payment of bills. This followed a case filed by Center for Health Human Rights and Development (CEHURD) and two others against Jaro Hospital and its proprietor, for detaining a 14-year-old boy whose parents could not cover, in time, a bill amounting to over 4 million Uganda Shillings after treatment. The decision is significant for several reasons.
First, it reemphasizes the need to protect the right to health as enshrined in international human rights law as well as in the domestic legal framework in Uganda.
Secondly, the ruling upholds the rule of law, it mandates that private healthcare facilities provide crucial essential healthcare services in a way that is both morally and legally compliant. Private hospitals have a duty to provide quality healthcare to patients, but they also have the responsibility to ensure that their business practices keep in line with the provisions of the law. The High Court of Uganda’s ruling flags the detention of patients as neither fair nor reasonable.
Thirdly, the case exposes the rampant concerns around power imbalances existing between companies doing business and individuals enjoying human rights. Patients who seek healthcare services are often vulnerable. Their enjoyment of human rights is often jeopardized by the demands of the health service providers. The case is a timely reminder that private health facilities ought to operate in a manner consistent with the rule of law and the protection of human rights.
In response to the judicial pronouncement, proprietors of private health facilities do, or threaten to demand collateral or indeed a cash deposit from patients before they receive any services. This raises questions of the intersectionality of business, human rights and the role of the state. The judge advises the facilities, in this case to explore alternatives of debt recovery to claim bills due rather than detain patients.
The detention of patients in private hospitals for non-payment of bills, as such, is a violation of human rights. Such false imprisonment in a non-designated detention facility is an actionable wrong which deprives individuals of their right to liberty and violates their dignity as well.
The judgement also demonstrates the role of different state actors, the judiciary in this case, which is a positive development in the area of business and human rights. The judiciary has sent out a strong message to businesses that they must respect human rights and that they will be held accountable for any violations.
However, more needs to be done to ensure that businesses respect human rights. For instance, several cases have sprung up regarding power blackouts in health facilities for governments non-payment of electricity bills. CEHURD, has on several occasions challenged Ugandan electricity service providers and regulators for cutting off power supply in health facilities which often jeopardizes the enjoyment of the right to health. Whereas, hospitals are obliged to clear their electricity bills, the measures against such noncompliance should not be meted on babies in incubators, patients on life support and all other health services that operate on electricity. Another example is a case where CEHURD challenged the failure of the health minister to regulate the cost of treating COVID-19. All this goes to show that beyond profit maximization, health workers swear an oath to save lives which should be prioritized in accordance with the law.
The state has a role to play in setting standards and regulations that promote human rights and hold businesses accountable for their actions. Businesses also need to take proactive steps to respect human rights and to prevent any negative impacts that their operations may have on human rights.
The case and judgment by the High Court of Uganda could not have come at a better time than now when conversations on the health insurance scheme for Ugandans have stalled in parliament. The Judiciary has struck. Both the legislature and executive arms should follow suit in setting the balance clear. The populace needs available, accessible, acceptable and quality healthcare. The capitalists want their money. Where are the answers?
The writer is a Strategic Litigation lawyer at Center for Health, Human Rights and Development (CEHURD).