Health Act

Section 1. Short title Section This Act may be cited as the Health Act.

Section 2. Interpretation Section In this Act unless the context otherwise requires— "abortion" means termination of a pregnancy before the foetus is viable as an independent life outside the womb; "alternative medicine" means complementary medicine and includes a broad set of healthcare practices that are not part of Kenya's tradition and are not integrated into dominant healthcare system; "Authority" means the Kenya Health Professions Oversight Authority established under section 45 ; "Board" refers to the governing Board of the Kenya Health Professions Oversight Authority; "breastfeeding" means the method of feeding an infant directly from the female breast; "Cabinet Secretary" means the Cabinet Secretary for Ministry responsible for matters relating to health; "Committee" means the National Research for Health Committee established under section 93 ; "Director-General" means the Director-General for health appointed under section 16 ; "disaster" means but is not limited to an adverse situation or event, which overwhelms local capacity for response and recovery, necessitating external assistance; "disease" refers to any physical or mental condition that causes pain, dysfunction,...

Section 3. Objects of the Act Section establish a national health system which encompasses public and private institutions and providers of health services at the national and county levels and facilitate in a progressive and equitable manner, the highest attainable standard of health services;

Section 4. Responsibility for health Section developing policies, laws and other measures necessary to protect, promote, improve and maintain the health and well-being of every person;

Section 5. Standard of health Section 5(1) Every person has the right to the highest attainable standard of health which shall include progressive access for provision of promotive, preventive, curative, palliative and rehabilitative services. Section 5(2) Every person shall have the right to be treated with dignity, respect and have their privacy respected in accordance with the Constitution and this Act. Section 5(3)(a) vaccination for children under five years of age; and Section 5(3)(b) maternity care. Section 5(4) For the purposes of implementing subsection (3), the national government shall in consultation with the respective county governments provide funds to county governments.

Section 6. Reproductive health Section 6(1)(a) the right of men and women of reproductive age to be informed about, and to have access to reproductive health services including to safe, effective, affordable and acceptable family planning services; Section 6(1)(b) the right of access to appropriate health-care services that will enable parents to go safely through pregnancy, childbirth, and the postpartum period, and provide parents with the best chance of having a healthy infant; Section 6(1)(c) access to treatment by a trained health professional for conditions occurring during pregnancy including abnormal pregnancy conditions, such as ectopic, abdominal and molar pregnancy, or any medical condition exacerbated by the pregnancy to such an extent that the life or health of the mother is threatened. All such cases shall be regarded as comprising notifiable conditions. Section 6(2) For the purposes of subsection (1)(c), the term "a trained health professional" shall refer to a health professional with formal medical training at the proficiency level of a medical officer, a nurse, midwife, or a clinical officer who has been educated and trained to proficiency in the skills needed to...

Section 7. Emergency treatment Section 7(1) Every person has the right to emergency medical treatment. Section 7(2)(a) pre-hospital care; Section 7(2)(b) stabilizing the health status of the individual; or Section 7(2)(c) arranging for referral in cases where the health provider of first call does not have facilities or capability to stabilize the health status of the victim. Section 7(3) Any medical institution that fails to provide emergency medical treatment while having ability to do so commits an offence and is liable upon conviction to a fine not exceeding three million shillings.

Section 8. Health information Section 8(1)(a) user's health status except in circumstances where there is substantial evidence that the disclosure of the user's health status would be contrary to the best interests of the user; Section 8(1)(b) range of promotive, preventive and diagnostic procedures and treatment options generally available to the user; Section 8(1)(c) benefits, risks, costs and consequences generally associated with each option; and Section 8(1)(d) user's right to refuse recommended medical options and explain the implications, risks, and legal consequences of such refusal. Section 8(2) The healthcare provider concerned must, where possible, inform the user as contemplated in subsection (1) in a language that the user understands and in a manner which takes into account the user's level of literacy. Section 8(3) Where the user exercises the right to refuse a treatment option, the healthcare provider may at its discretion require the user to confirm such refusal in a formal manner. Section 8(4) In this section, the word "user" refers to any person who seeks or intends to seek medical care from a healthcare provider and the expression "healthcare provider" includes...

Section 9. Consent Section 9(1)(a) mandated by the patient in writing to grant consent on his or her behalf; or Section 9(1)(a)(i) mandated by the patient in writing to grant consent on his or her behalf; or Section 9(1)(a)(ii) authorized to give such consent in terms of any law or court order; Section 9(1)(b) the patient is unable to give informed consent and no person is mandated or authorized to give such consent, but the consent is given by the next of kin; Section 9(1)(c) the provision of a health service without informed consent is authorized by an applicable law or court order; Section 9(1)(d) the patient is being treated in an emergency situation; Section 9(1)(e) failure to treat the user, or a group of people which includes the user, will result in a serious risk to public health; or Section 9(1)(f) any delay in the provision of the health service to the patient might result in his or her death or irreversible damage to his or her health and the patient has not expressly, or by implication or by conduct refused that service. Section 9(2) A healthcare provider must take all reasonable steps to obtain the user's informed consent. Section 9(3) For the purposes of this section...

Section 10. Information dissemination Section the types, availability and cost if any of health services;

Section 11. Confidentiality Section 11(1) Information concerning a user, including information relating to his or her health status, treatment or stay in a health facility is confidential except where such information is disclosed under order of court or informed consent for health research and policy planning purposes. Section 11(2)(a) the user consents to such disclosure in writing in the prescribed form; Section 11(2)(b) a court order or any applicable law requires such disclosure; or Section 11(2)(c) non-disclosure of the information represents a serious threat to public health. Section 11(3) Any proposed disclosure of information under subsection 2(c), shall be subject to regulations published by the Cabinet Secretary of health, from time to time.

Section 12. Healthcare providers Section 12(1)(a) not to be unfairly discriminated against on account of any of the grounds set out in Article 27(4) of the Constitution; Section 12(1)(b) the right to a safe working environment that minimizes the risk of disease transmission and injury or damage to the healthcare personnel or to their clients, families or property; Section 12(1)(c) the right to refuse to treat a user who is physically or verbally abusive or who sexually harasses him or her except in an emergency situation where no alternative healthcare personnel is available; Section 12(1)(d) the right to apply for and accept a salaried post in the public service or the private sector. Section 12(2)(a) to provide healthcare, conscientiously and to the best of their knowledge within their scope of practice and ability, to every person entrusted to their care or seeking their support; Section 12(2)(b) to provide emergency medical treatment as provided for under section 7 (2); Section 12(2)(c) to inform a user of the health system, in a manner commensurate with his or her understanding, of his or her health status: Section 12(3) Notwithstanding the provisions of subsection (1)(a), the...

Section 13. Duty of users Section to adhere to the rules of a health facility when receiving treatment or using the health services provided by the establishment;

Section 14. Complaints Section 14(1) Any person has a right to file a complaint about the manner in which he or she was treated at a health facility and have the complaint investigated appropriately. Section 14(2) The relevant national and county governments shall establish and publish the procedure for the laying of complaints within public and private healthcare facilities in those areas of the national health system for which they are responsible. Section 14(3)(a) be displayed by all health facilities in a manner that is visible for any person entering the establishment and the procedure must be communicated to users on a regular basis; and Section 14(3)(b) be primarily handled by the head of the relevant facility or any person designated by the facility as responsible for handling user complaints. Section 14(4) Every complainant under subsection (1) has a right to be informed, in writing and within a period of three months from the date the complaint was lodged, of the action taken or decision made regarding the complaint. Section 14(5) Where a health facility or a regulatory body fails to resolve a complaint to the satisfaction of the complainant, the Authority shall take nece...

Section 15. Duties of national government Section 15(1)(a) develop health policies, laws and administrative procedures and programmes in consultation with county governments and health sector stakeholders and the public for the progressive realization of the highest attainable standards of health including reproductive healthcare and the right to emergency treatment; Section 15(1)(b) develop and maintain an organizational structure of the Ministry at the national level comprising of technical directorates; Section 15(1)(c) ensure the implementation of rights to health specified in the Bill of Rights and more particularly the progressive realization of the right of all to the highest attainable standard of health including reproductive healthcare and the right to emergency treatment; Section 15(1)(d) ensure, in consultation and collaboration with other arms of government and other stakeholders, that there is stewardship in setting policy guidelines and standards for human food consumption, dietetic services and healthy lifestyle; Section 15(1)(e) offer technical support at all levels with emphasis on health system strengthening; Section 15(1)(f) develop policy measures to promote eq...

Section 16. Office of the Director-General Section 16(1) There shall hereby be established the office of the Director-General for health. Section 16(2) The Director-General for health shall be recruited by the Public Service Commission through a competitive process, vetted by Parliament and appointed by the Cabinet Secretary. Section 16(3)(a) be a medical practitioner registered by the Medical Practitioners and Dentists Board; Section 16(3)(b) at least be a holder of a Masters degree in public health, medicine or any other health related field; Section 16(3)(c) have experience of at least ten years in management of health services, five of which must be at a senior management position; and Section 16(3)(d) meet the provisions of Chapter Six of the Constitution of Kenya. Section 16(4) The Director-General shall hold office for a term of five years renewable once.

Section 17. Functions of the Director-General Section be the technical advisor to the Government on all matters relating to health within the health sector;

Section 18. Directorates Section medical services;

Section 19. County health system Section 19(1) There shall be established with respect to every county, a county executive department responsible for health, which shall be in line with the health policy guidelines for setting up county health system and shall in all matters be answerable to the Governor and the County Assembly subject to the provisions of the Constitution and of any applicable written law. Section 19(2) There shall be established the office of the County Director of health who shall be a technical advisor on all matters of health in the County. Section 19(3) The County Director of health shall be recruited through a competitive process in conformity with the rules and regulations set from time to time by the County Public Service Board. Section 19(4)(a) be a medical practitioner registered by the Medical Practitioners and Dentists Board; Section 19(4)(b) be at least a holder of a Masters degree in public health, medicine or any other health related discipline; and Section 19(4)(c) have at least five years' experience in management of health services. Section 19(5)(a) be the technical advisor on all matters relating to health within the County; Section 19(5)(b) be...

Section 20. Duties of county government Section implementing the national health policy and standards as laid down by national government Ministry responsible for health;

Section 21. Coordination Section The National Health System shall work in a manner that respects the distinct levels of government, while respecting the principles of cooperation and coordination as outlined in this Act and in legislation regulating the relationships and functions of the county and national government.

Section 22. Public health facilities Section The national and county governments shall ensure the progressively equitable distribution throughout the country of such publicly owned health institutions, including hospitals, health centers, pharmacies, clinics and laboratories, as are deemed necessary for the promotive, preventive and rehabilitative health services.

Section 23. Public private partnership Section Notwithstanding the provisions of section 65 and subject to any other law regulating public-private partnerships, nothing under this Act shall prevent the national and county governments from entering into public-private partnerships for the purpose of establishing and deepening health service provision.

Section 24. Retention of service provision Section any public health institution classified as a national referral facility under this Act;

Section 25. Classification of levels of healthcare Section 25(1) The technical classification of levels of healthcare shall be as set out in the First Schedule. Section 25(2) Subsection (1) shall not apply to a health facility under the management of a county government at the commencement of this Act.

Section 26. Establishment of Forum Section 26(1) There is established a Health Sector Inter-Governmental Consultative Forum, in line with the provisions of the Inter-Governmental Relations Act (Cap. 265F) and any applicable law. Section 26(2)(a) the Director-General for health or a designated representative; and Section 26(2)(b) each County Director of health or a designated representative.

Section 27. Purpose of the Forum Section develop criteria and framework for determining matters requiring inter-governmental consultation; and

Section 28. Meetings of the Forum Section The Forum shall meet at least twice a year.

Section 29. Conduct of Business Section The Forum shall regulate the conduct and regulation of the business and affairs of the Forum.

Section 73. Mental health Section protect the rights of any individual suffering from any mental disorder or condition;

Section 30. Establishment of the Council Section 30(1)(a) a Chairperson, who shall be appointed by the Cabinet Secretary; Section 30(1)(b) the Principal Secretary for the time being responsible for matters relating to health or a representative designated by the Principal Secretary; Section 30(1)(c) one person, not being a governor, nominated by the Council of Governors; Section 30(1)(d) the Attorney-General or a representative designated by the Attorney-General; Section 30(1)(e) the Director-General for health or a representative designated by the Director-General; Section 30(1)(f) one representative nominated by the Public Service Commission; Section 30(1)(g) one person nominated by the county directors of health; Section 30(1)(h) one person nominated by the county public service boards; Section 30(1)(i) three persons nominated by the public universities, private universities and mid-level institutions; and Section 30(1)(j) the Chief Executive Officer who shall be an ex officio member and secretary to the Council. Section 30(2)(a) suing and being sued; Section 30(2)(b) acquiring, holding and disposing of movable and immovable property; and Section 30(2)(c) doing or performing all...

Section 31. Functions of the Council Section posting of interns to National Government and County Government facilities;

Section 32. Powers of the Council Section control, supervise and administer the assets of the Council in such manner and for such purpose as best promotes the purposes for which the Council is established;

Section 33. Chief Executive Officer Section 33(1) The Public Service Commission shall, through an open and transparent process, recruit a Chief Executive Officer who shall be appointed by the Council. Section 33(2)(a) holds at least a degree in medicine from a university recognized in Kenya, and is registered by the Medical Practitioners and Dentists Board; Section 33(2)(b) has at least ten years' experience in the practice of medicine, five of which shall be experience at a senior management level; and Section 33(2)(c) meets the requirements of Chapter Six of the Constitution. Section 33(3) The Chief Executive Officer shall serve the Council for a term of five years and shall be eligible, subject to satisfactory performance of his or her functions, for reappointment for one further term. Section 33(4) A person shall not be appointed as the Chief Executive Officer or an officer of the Council if such person has any direct or indirect interest in the health sector. Section 33(5) The Chief Executive Officer may be removed from office for gross misconduct, violation of the Constitution or any other law or any other ground as may be provided for in the contract of employment. Section 3...

Section 34. Conduct of business and affairs of the Council Section 34(1) The conduct and regulation of the Business and affairs of the Council shall be as provided in the Second Schedule. Section 34(2) Except as provided in the Second Schedule, the Council may regulate its own procedure.

Section 35. Delegation by the Council Section The Council may, by resolution generally or in any particular case, delegate to any committee of the Council or to any member, officer, employee or agent of the Council, the exercise of any of the powers or the performance of any of the functions or duties of the Council under this Act.

Section 36. Tenure of office Section 36(1) The Chairperson and the members of the Council, other than the ex officio members, shall hold office for a term of five years and shall be eligible for reappointment for one further term. Section 36(2) The members of the Council shall be appointed in such a manner that the respective expiry dates of their terms of office fall at different times.

Section 37. Staff of the Council Section 37(1) The Council may competitively appoint suitably qualified staff as may be necessary for the efficient performance of the functions of the Council. Section 37(2)(a) afford adequate and equal opportunities for appointment and advancement at all levels, of men and women, members of all ethnic groups and persons with disabilities; Section 37(2)(b) exercise transparency in the recruitment process; and Section 37(2)(c) ensure competitive recruitment and selection on the basis of personal integrity, competence and suitability.

Section 38. Terms and conditions of service Section The staff of the Council shall serve on such terms of service as the Council, on recommendation of the Salaries and Remuneration Commission may determine.

Section 39. Protection from liability Section 39(1) A member of the Council or any person working under the instructions of the Council shall not be personally liable for any act or default of the Council done or omitted to be done in good faith in the course of carrying on the functions of, or exercising of powers conferred upon the Council under this Act. Section 39(2) Despite subsection (1), the Council shall not be relieved of its liability to pay compensation to any person for any injury to him or her, his or her property or to any of his or her interest caused by the exercise of any power conferred by this Act or by failure, whether wholly or partially, of any works.

Section 40. Funds of the Council Section such funds as may be appropriated by the Parliament;

Section 41. Financial year Section The Financial year of the Council shall be the period of twelve months ending on the thirtieth day of June in every year.

Section 42. Annual estimates Section 42(1) The Council shall, at least three months before the commencement of each financial year, cause to be prepared estimates of revenue and expenditure of the Council for that financial year. Section 42(2)(a) payment of salaries, allowances and other charges in respect of the members of staff or agents of the Council; Section 42(2)(b) payment of pensions, gratuities and other charges in respect of members and other staff of the Council; Section 42(2)(c) proper maintenance of buildings and grounds of the Council; Section 42(2)(d) acquisition, maintenance, repair and replacement of the equipment and other movable property of the Council; and Section 42(2)(e) funds to meet future or contingent liabilities in respect of retirement benefits, insurance or replacement of buildings or equipment, or in respect of such other matter as the Council may deem appropriate. Section 42(3) The annual estimates shall be approved by the Council before commencement of the financial year to which they relate and shall be submitted to the Cabinet Secretary for approval and after approval, the Council shall not increase annual estimates without the consent of the Cabi...

Section 43. Accounts and audit Section 43(1) The Council shall cause to be kept all proper books of records of accounts of the income, expenditure, assets and liabilities of the Council. Section 43(2) The accounts of the Council shall be audited and reported upon in accordance with the provisions of the Public Audit Act (Cap. 412B). Section 43(3)(a) a statement of income and expenditure during the year; Section 43(3)(b) a statement of the assets and liabilities of the Council as of the last day of that year; Section 43(3)(c) a cash flow statement for the financial year; and Section 43(3)(d) any other statements and accounts that may be necessary to fully disclose the financial position of the Council.

Section 44. Investment of funds Section The Council may, subject to the approval of the Cabinet Secretary for the time being responsible for matter relating to finance invest any of the funds of the Council in securities in which, for the time being, trustees may by law invest funds or any other securities which the National Treasury may, from time to time approve for that purpose.

Section 45. Establishment of the Authority Section 45(1) There is established an Authority known as the Kenya Health Professions Oversight Authority. Section 45(2)(a) suing and being sued; Section 45(2)(b) acquiring, holding and disposing of movable and immovable property; and Section 45(2)(c) doing or performing all such other things or acts as may be lawfully done by a body corporate.

Section 46. Board of the Authority Section 46(1)(a) a Chairperson appointed by the Cabinet Secretary who shall be a health professional who meets the requirements of Chapter Six of the Constitution of Kenya; Section 46(1)(b) the Principal Secretary in the Ministry for the time being responsible for health or a designated representative; Section 46(1)(c) the Director-General for health or a designated representative; Section 46(1)(d) the Attorney-General or a designated representative; Section 46(1)(e) two representatives nominated by the health regulatory bodies established under an Act of Parliament; Section 46(1)(f) two representatives nominated by the Council of Governors; Section 46(1)(g) two representatives nominated by the health professional associations registered by the Registrar of Societies who are not regulated or registered by any regulatory body; Section 46(1)(h) one representative from the private sector appointed by the Cabinet Secretary; Section 46(1)(i) one representative from consumer rights bodies appointed by the Cabinet Secretary; and Section 46(1)(j) the Chief Executive Officer, appointed by the Authority, through a competitive process and who shall be an ex...

Section 47. Powers of the Board Section control, supervise and administer the assets of the Authority in such manner and for such purpose as best promotes the purposes for which the Authority is established;

Section 48. Functions of the Authority Section 48(1)(a) maintain a duplicate register of all health professionals working within the national and county health system; Section 48(1)(b) promote and regulate inter-professional liaison between statutory regulatory bodies; Section 48(1)(c) coordinate joint inspections with all regulatory bodies; Section 48(1)(d) receive and facilitate the resolution of complaints from patients, aggrieved parties and regulatory bodies; Section 48(1)(e) monitor the execution of respective mandates and functions of regulatory bodies recognised under an Act of Parliament; Section 48(1)(f) arbitrate disputes between statutory regulatory bodies, including conflict or dispute resolution amongst Boards and Councils; and Section 48(1)(g) ensure the necessary standards for health professionals are not compromised by the regulatory bodies. Section 48(2)(a) the manner and form of coordinating joint inspections with all regulatory bodies; Section 48(2)(b) the procedure for receipt and facilitation of the resolution of complaints from patients aggrieved parties and regulatory bodies; Section 48(2)(c) the manner of monitoring the execution of respective mandates and...

Section 49. Chief Executive Officer Section 49(1) The Public Service Commission shall, through an open and transparent process, recruit a Chief Executive Officer who shall be appointed by the Authority. Section 49(2)(a) is a health practitioner registered by the respective regulatory body; Section 49(2)(b) has at least ten years' experience in the practice of medicine, five of which shall be experience at a senior management level; and Section 49(2)(c) meets the requirements of Chapter Six of the Constitution. Section 49(3) The Chief Executive Officer shall serve the Authority for a term of five years and shall be eligible, subject to satisfactory performance of his or her functions, for re-appointment for one further term. Section 49(4) A person shall not be appointed as the Chief Executive Officer or an officer of the Authority if such person has any direct or indirect interest in the health sector. Section 49(5) The Chief Executive Officer may be removed from office for gross misconduct, violation of the Constitution or any other law or any other ground as may be provided for in the contract of employment. Section 49(6) The Chief Executive Officer shall be responsible to the Boa...