When hospitals become prisons

Debate rages over case of newborn baby detained for 4-months

Kampala, Uganda | THE INDEPENDENT | A case of a health facility detaining a patient for failure to pay a medical bill is once again in the news and the courts. This time, it is a couple suing a high end facility, Rosewell Women and Children Hospital Ltd, in Kampala for detaining their newborn baby for four months as of early September.

In the case before the Civil Division of the High Court in Kampala, the couple say the hospital’s actions have “turned their baby into a commodity”, which they consider to be inhuman, cruel, and degrading.

Details indicate that on May 08, Saloome Aturinde underwent a caesarian delivery at Rosewell Women and Children Hospital and on May 11, she was presented with two bills; Shs5.2 million for the mother and Shs4.4 million for the newborn baby. The couple managed to pay Shs5.9 million and requested to be discharged but the hospital refused.

Since then, the case has taken sever twists and turns and the outstanding bill had swollen to Shs16.2 million by May 27, the parents can no longer identify their baby which is in a babies home and are undergoing DNA tests, and the next hearing is on Sept.22.

Cases of health facilities detaining patients over unpaid bills are nothing new in Uganda or around the world. The case is similar to one of 2016 where a patient, Patrick Obiga, sued the International Hospital In Kampala (IHK) for detaining him for failure to pay a balance of Shs19.5 million out of a bill of Shs39 million, as reported in the New Vision.

In the Obiga case, commentators on the detention said if a patient is unable to pay, the hospital should find ways to help the person rather than arrest them.

In a similar case in Kenya of Emmah Muthoni Njeri against The Nairobi Women’s Hospital, the High Court held that patients have an obligation to pay the medical bills incurred as by date of discharge. The Court noted that there was a contractual relationship between a patient and a hospital. In other words, that it is not reasonable for patients to walk into expensive private hospitals, get treated, and expect to walk out without paying the bills.

But the Kenyan court also noted that any form of detention not sanctioned by law that seeks to procure performance of a contractual debt is a violation of the right to liberty and human dignity. The Court equated holding patients within hospitals for failure over unpaid bills to illegal detention of the patient. It ruled that the hospital could pursue other lawful means of recovering its debt other than detaining its patients. It ordered the hospital to pay the patient for illegally detaining her.

Significantly, court noted that the patient had no obligation to pay any expenses that may have been incurred by the hospital during the unlawful detention period. The reasoning of the Court was that no person ought to be compensated for costs or expenses incurred in the commission and perpetuation of unconstitutional acts.

Widespread problem

The WHO says hospital detention for non-payment of bills occurs when hospital staff refuse to release patients after medical discharge is clinically indicated because neither the patient nor their family can pay the bill. Another form of hospital detention is refusal by hospital staff to release the bodies of deceased patients to their families when bills remain unpaid.

The WHO says available studies indicate that hospital detention occurs mainly in health systems in low- and middle-income countries. Based on limited academic research available, it says hundreds of thousands of people could be affected every year, mostly in countries in sub-Saharan Africa and a few countries in Asia.

The detentions periods can vary greatly from days to months and, in rare cases, to more than a year.

In 2021, the Initiative for Social and Economic Rights (ISER), a human rights NGO in Uganda, published a study report entitled `When patient becomes prisoner: Detention in health facilities in Uganda’.

The reported noted that the detention of mothers post-delivery in private and Private Not For Profit (PNFP) facilities for non-payment of maternal healthcare bills is “increasingly commonplace across Uganda”. It cited a newspaper report in the Daily Monitor of 2019 titled: “Hospital detains 4 mothers, babies over medical bills”.

The report urged the government to outlaw the practice of patient detention by health facilities, especially for financial reasons. It argued that health care services during pregnancy, childbirth and after delivery are important for the survival and well-being of both the mother and the infant and are regarded as a priority by government policy.

The authors noted that detention of patients by health facilities, among others, infringes on Article 9 of the international Covenant on Civil and Political Rights (ICCPR) which states, among others, that no person shall be detained for non-payment of a debt and Article 11 that states “(n)o one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.”

In December 2020, at the time of investigations, St Francis Mission hospital, in Buikwe District had detained five new mothers at its facility due to failure to pay maternal medical bills. One of the women had been detained for three months.

“I am imprisoned here,” the woman reportedly told the authors, “I am not allowed to go past the entrance gate.”

Another woman had lost her baby during pregnancy but was detained for failure to pay Shs306,500. During her detention, she developed complications and had an operation that cost another Shs633,000; pushing the total sum demanded by the hospital to Shs 939,500.

“I have no way of raising this money since I’m detained and I’m not allowed to leave the hospital premises,” the woman said, “We have no money for food and the hospital doesn’t provide us with anything.”

“Hospitals clearly regard detention as a strong motivator for patients to rally wider family networks to assist with payment,” the authors noted.

The report notes that, at the time, some hospitals, such as Kumi Missionary Hospital, had a so-called ‘village’; a detention area within the hospital where indebted patients are held until they complete their bills.

Risks to patients

The authors noted that hospital detentions expose the patients to the risk of further illness, it promotes discrimination and is contrary to equity in access to healthcare as it disproportionately affects the poorest and most vulnerable women and their children, has negative psychological impacts, and deepens poverty.

“Fear of detention may forestall the seeking of medical care, particularly if the woman experienced it during her prior pregnancy,” the authors note.

The report blames hospital detention for non-payment on underfinancing of the public health sector which results in catastrophic out of pocket expenditure, limited access to health insurance, lack of public health facilities in some areas, and government failure to regulate private actors in the health sector.

The report notes that the average expenditure on the health sector in the last nine years has been 7.9% of the national budget, which is lower than the 15% agreed under the Abuja Declaration.

Uganda is not alone in facing this challenge. A story on the UK newspaper; The Guardian, pointed out that hospital detentions, can be traced to policies pushed decades ago by the World Bank, the World Health Organisation, UNICEF and others who made loans to developing countries on condition that they charge patients fees for medical services.

Without explicit protections in place to protect the poor, they say, this gave freedom to health facilities to extract payments however they saw fit  including detaining patients.

The Guardian story listed cases from Bolivia, Malaysia, India, the Philippines, Congo, and Kenya.

“What’s striking about this issue is that the more we look for this, the more we find it,” said Dr. Ashish Jha, director of the Harvard Global Health Institute, who was not involved in the British research. “It’s probably hundreds of thousands if not millions of people that this affects worldwide.

In 2017, Lancet; the prestigious medical journal published a report entitled ` When a hospital becomes a prison’.

“Detention seems to be most common among the poor and those who require emergency treatment notably for complications of childbirth and road traffic injuries and can last up to several months,” report said.

It noted that national legal reforms to outlaw patient detention, are alone unlikely to solve the problem.

“Systematic health financing reforms to prevent people incurring unaffordable medical bills must be part of the response placing the pursuit of universal health coverage at the centre of ensuring that patients do not become prisoners when they are at their most vulnerable.”

Possible interventions

Faced with similar challenges, in 2006, the government of Burundi ordered the release of all mothers and babies from detention and reformed the health financing system to ensure free maternity care for all. This led to a fall in the death of mothers and newborns.

In several cases in Kenya, including that of Muthoni Njeri Vs. Nairobi Women’s Hospital, the courts have held that although the patients have a contractual obligation to pay hospital bills, detaining them infringes on the constitutional freedoms yet the hospitals have other means of demanding payment. Several countries, including Zimbabwe, the Philippines, and Turkey have outlawed detention of patients.

The WHO emphasises the provision of Universal Health Coverage (UHC) by the government which means that “all people receive needed health services of sufficient quality, without fear that access to those services will expose the user to financial hardship”.

The objectives of UHC include utilisation of health services in line with need (i.e. equitable access), quality of health services, and financial protection. The international community has committed to achieving UHC as part of the 2030 Agenda for Sustainable Development, WHO says. But it adds, it is clear that affected countries are struggling to find practical solutions to end hospital detention.