THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH: THE ROLE AND

RELEVANCE OF PRE-HOSPITAL EMERGENCY MEDICAL SERVICES IN THE KENYAN

HEALTH SECTOR

BY: BEAUTTAH MIGIRO AKUMA*1

G34/3373/2014

GPR 421: RESEARCH PAPER

RESEARCH PROPOSAL SUBMITTED TO THE UNIVERSITY OF NAIROBI IN PARTIAL

FULFIMENT OF THE AWARD OF BACHELOR OF LAWS (LL.B) DEGREE

DECEMBER, 2018

NAIROBI, KENYA

1
*Beauttah Migiro Akuma is a multi-award-winning Advanced Emergency Medical Technician (A-EMT) with Advanced Life Support endorsements. He
is an Emergency Medical Services (EMS) Consultant who is currently practicing as the Founder & Executive Director of Knights Emergency Medical
Services. Moreover, Beauttah is the incumbent Secretary General of the EMS Providers Welfare Association of Kenya. More still, he is a current intern
at the Ministry of Health’s Division of Emergency & Disaster Risk Management (EDRM). Further more, he is the immediate former Assistant Secretary
to the Kenya Council of Emergency Medical Technicians (KCEMT) and Vice Chairperson to the KCEMT Organizational & Development Committee.

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DECLARATION

I, BEAUTTAH MIGIRO AKUMA, do hereby declare that this Research Proposal is my original work

submitted in partial fulfillment of the Bachelor of Laws (LL.B) degree at the University of Nairobi,

(Parklands School of Law); and has not been submitted neither is it pending submission for a diploma,

degree or doctoral research material in any other university. Moreover, references made to texts, articles,

papers and journals, and other pertinent materials, have been fully acknowledged.

Signature …………………………… Date …………………………………

BEAUTTAH MIGIRO AKUMA (G34/3373/2014)

SUPERVISOR APPROVAL

This Research Proposal has been submitted for examination with my knowledge and approval as a

supervisor at the University of Nairobi, Parklands School of Law.

Signature …………………………… Date …………………………………

MR. LAWRENCE M. MUTE (LECTURER)

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 TABLE OF CONTENTS

DECLARATION ……………………………………………………………………………... ii

1.0 INTRODUCTION ……………………………. ……………………………........... 1

1.1. Introduction Overview ……………………………. ………………………….. 1

1.2. Problem Statement ……………………………. ……………………… ……. 3

1.3. Statement of Research Objectives ……………………………. …… ………. 3

1.4. Research Questions ……………………………. ……………………………… 3

1.5. Hypothesis ……………………………. ………………………………………. 3

1.6. Conceptual Framework ……………………………. …………………………. 4

1.6.1. The Golden Hour Concept ……………………………. ……… …….. 4

1.6.2. The Principle of Subsidiarity ……………………………. …… …….. 4

1.7. Literature Review ……………………………. ……………………………….. 5

1.8. Justification of the Study ……………………………. ………………………… 6

1.9. Limitations of the Study ……………………………. …………………………. 7

1.10. Research Methodology ……………………………. ………………………….. . 7

1.11. Conclusion ……………………………. ……………………………………… . 8

1.12. Chapter Breakdown ……………………………. …………………………… … 8

1.13. Bibliography ……………………………. …………………………………….. 9

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 1.13.1. Books ……………………………. …………………………… ……... 9

1.13.2. Scholarly Writings ……………………………. ……………………… 9

1.13.3. The Constitution and Statutes ……. …………………………………... 9

1.13.4. International Legal Instruments ………………. ……………………… 9

1.13.5. Judicial and Tribunal Decisions ……………. ……………………… 10

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“The lack of a coordinated EMS system in Kenya contributes to unnecessarily high morbidity and

mortality,” but “when LMICs [Low and Middle Income Countries] have implemented EMS systems,

even at rudimentary levels, they have consistently seen significant improvements in morbidity and

mortality from emergencies and trauma.” 2

- Michelle Thompson
Lead Emergency Nurse Practitioner at The Emergency Group (TEG)

1.0. INTRODUCTION

1.1. Introduction Overview

The Constitution of Kenya, 20103 guarantees the right of every person to the highest attainable standard

of health in general and the specific right not to be denied emergency medical treatment. Despite of this

clear statement of the law, millions of Kenyans cannot enjoy this constitutional guarantee due to various

institutional, legal, and structural challenges that are currently crippling the health sector.4 These

challenges are further complicated by various social-economic and practical obstacles such as a severe

under-funding of the Kenyan health sector5 and massive industrial actions6 that are undertaken in blatant

disregard of the law7 but justifiable out of necessity.

2
Michelle Thompson, ‘A Comprehensive Review of the Emergency Medical Services System in Kenya’ (Michelle Thompson Thesis) (Master of Public
Health thesis, Emory University 2013) 6, 25

3
The Constitution of Kenya, 2010; Articles 43 (1) and (2)

4
Government of Kenya: Ministry of Health, ‘Ministerial Strategic & Investment Plan: July 2014 - June 2018’ (Ministry of Health 2014)
<http://www.health.go.ke/wp-content/uploads/2016/03/ministerial-strategic-investment-plan.pdf> and accessed on 29 September, 2018

5
Current Kenyan health sector financing is at a slow growth of 4.5% over the past 10 years way below 15% pledge in the Abuja Declaration. See; World
Health Organization, ‘The Abuja Declaration: Ten Years On’ (WHO 2011) <www.who.int/healthsystems/publications/abuja_declaration/en/> accessed
20 September 2017; Jeremiah Wakaya, ‘Study: Kenya’s Health Sector Underfunded’, (Capital FM, 31 January 2017 )
<http://www.capitalfm.co.ke/news/2017/01/study-kenyas-health-sector-underfunded/> accessed on 29 September 2017
6
Over 5, 000 heath workers striking for over 100 days, See; Aljazeera, ‘Kenya Doctors End Strike After Deal With Government’, (Aljazeera, 15 March
2017) <www.aljazeera.com/amp/news/2017/03/kenya-doctors-strike-deal-government-170314084246054.html> accessed on 21 September 2017

7
Section 81 of the Labour Relations Act of 2007 proscribes strikes and /or lock outs in an essential service. For further clarity, Paragraph 2 of the Fourth
Schedule to this Act clarifies the types of essential services to include but not limited to hospital services.

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 This state of health affairs brings more doubt than surety as to whether the Kenyan health sector can, as

currently constituted, guarantee the realization of the right to the highest attainable standard of health.

On the other hand, the Pre-hospital Emergency Medical Services (PHEMS) System has been proclaimed

globally as an affordable, efficient and effective system8 of improving access to the highest attainable

standard of health. Moreover, since the inception of a formal Anglo-American PHEMS System in

Kenya,9 the System has been very responsive to the health needs of the Kenyan population.10

1.2. The Problem Statement

Preliminary research shows that a Pre-hospital Emergency Medical Services (PHEMS) System is a

crucial enabler of the right to the highest attainable standard of health. As such, there has been an ever

increasing demand for PHEMS Systems around the world and a subsequent integration as an effective

reform to strengthen the connected health sectors. On the contrary, it has been 20 years since the

introduction of a formal PHEMS System in Kenya but this System has been neglected and sidelined

from various health sector reforms, institutions and frameworks. Moreover, efforts to recognize, develop,

and integrate a functional PHEMS System for Kenya have been frustrated and/or ignored. Fortunately,

this neglect is attributed to just a paucity of research and lack of information. In this regard, the aim of

this study is to critically examine the role, contribution and relevance of the PHEMS System to the

Kenyan health sector, especially in the quest to achieve the highest attainable standard of health.

8
Christopher Page et al, ‘Analysis of Emergency Medical Systems Across the World’ (BSc. Interactive Qualifying Project, Worcester Polytechnic
Institute 2013); Manish Shah, ‘The Formation of the Emergency Medical Services System’ (2006) 96 American Journal of Public Health 414
9
Brian Beauttah, ‘Profiling and Emergency Medical Technicians: Historical, Personal and Professional Profile.’ (Knights Emergency Medical Services,
28 August 2018) <https://knightsemsblog.files.wordpress.com/2018/10/kems-20180812-emt-profiling-and-career-progression-1-0.pdf>. Accessed 25
October 2018

10
See the Alex Madaga Case. This case is about an accident victim who received life sustaining interventions for eighteen (18) hours in ambulance. The
Kenya Medical Practitioners and Dentists Board, Preliminary Inquiry Committee Case No. 40 of 2015. Jesca Moraa (On behalf of the late Alex Madaga
Matini) v PCEA Kikuyu Hospital & 4 Ors, <www.kelinkenya.org/thematic-area/preliminary-findings-alex-madaga/> accessed 28 August 2018;
KMPDB Professional Conduct Committee Case No. 2 of 2016. Jesca Moraa (On behalf of the late Alex Madaga Matini) v Kenyatta National Hospital &
Anor, <www.kelinkenya.org/thematic-area/alex-madaga-ruling> accessed 28 August 2018)
See also; Bainito Mateny Ichemi and Jesca Moraa Maosa v Josephine Mbuthia and Zacheus Kuria Mungai as CMCC No. 6426 of 2016 at the Chief
Magistrates Court in Nairobi.

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1.3. Statement of Objectives

Through this study, I will address the following objectives;

i) To briefly define the right to the highest attainable standard of health.

ii) To critically examine the role of the PHEMS System in the Kenyan health sector.

iii) To comprehensively analyze the contribution and relevance of the PHEMS System in the

Kenyan health sector.

1.4. Research Questions

This study will address the following questions;

a) What does the right to the highest attainable standard of health mean?

b) What is the role of the PHEMS System in Kenya?

c) Is the contribution of the PHEMS System relevant to the Kenyan health sector?

d) What is the way forward in relation to the PHEMS System in Kenya?

1.5. Hypothesis

This study proceeds on the assumption that there are insufficient studies that have been formulated to

recognize, standardize, regulate, integrate and support the Kenyan PHEMS System. The study also

assumes that the PHEMS System is a crucial component in achieving the right to health and that the main

reason for lack of integration is due to lack of information on the System.

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1.6. Conceptual Framework

The conceptual framework on the role, relevance and contribution of a PHEMS System to health care

systems is based on major part on the Golden Hour Concept and in the Principle of Subsidiarity.

1.6.1. The Golden Hour Concept11

The Golden Hour Concept is a representation of the period when health care practitioners have the

highest impact in the morbidity and mortality of patients.12 As such, research findings concluded that

patients who reach definitive care facilities within 60 minutes (the Golden Hour) immediately after the

injury had better chances of survival. It is not in doubt that ambulances facilitate rapid access of patients

to definitive care facilities and thus form a crucial component in positive health care outcomes.

1.6.2. The Principle of Subsidiarity13

Subsidiarity in health systems is a general principle that advocates for the management of patients at the

most basic but appropriate level then refer the complex cases throughout the continuum of care if

absolutely necessary. The Kenyan health care system is structured into four tiers of health facilities

starting with the basic community structures as tier one to advanced national referral facilities as tier

four.14 Considering that most emergencies occur in pre-hospital settings, I will set out to argue that

11
The Golden Hour Concept is attributed to Dr. Adams Cowley in 1973 when he found that, “care given in the first hour determines the extent of organ
damage that the patient might sustain.” Adams R. Cowley, ‘A Total Emergency Medical System for the State of Maryland’ (1975) 45 Maryland State
Medical Journal 37
12
American College of Surgeons, Advanced Trauma Life Support: Student Course Manual (9th Edition, Hearthside Publishing Services 2012) xxiii-ix
13
According to the United Nations Development Program's (UNDP) 1999 report, applying the principle of subsidiarity improves the overall quality and
effectiveness of the system while increasing the capabilities of component levels.
United Nations Development Program and Government of Germany, ‘Decentralization: A Sampling of Definitions’, (UNDP, 9 October
1999)<web.undp.org/evaluation/documents> accessed 9 October 2017. 2, 16, 26. (An evaluation of the UNDP role in decentralization and local
governance) 2, 16, 26

14
Republic of Kenya, Ministry of Health ‘Transforming Health: Accelerating attainment of Universal Health Coverage - the Kenya Health Sector
Strategic and Investment Plan (July 2013 to June 2017). Pp 20.

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 strengthening, integrating and empowering the PHEMS System will enhance early access to high

quality and appropriate health care and promote the overall effectiveness of the health sector.

1.7. Literature Review

While acknowledging that there is a limited Kenyan specific literature on subject matter, I will review the

existing literature and general universal frameworks that are applicable to the Kenyan context.

1.7.1. A Comprehensive Review of the Emergency Medical Services System in Kenya15

The most comprehensive literary work on the Kenyan PHEMS System is this thesis by Michelle

Thompson. While using EMS and PHEMS interchangeably in her qualitative research of 2013,

Michelle found that there was a severe scarcity of literary works that were specific to the Kenyan

PHEMS System. There were no laws, policies or standards regulating the Kenyan PHEMS System and

thus leading to a highly fragmented and uncoordinated system than was run on unregulated self-imposed

codes.16 In this kind of circumstances, it is my keen observation that the lack of literature and regulation

contributes to the ignorance about the PHEMS System in general. I also find that it is very difficult to

properly determine the role of the PHEMS System therefrom and thus the need for this study.

Nevertheless, even amid the said challenges, Michelle asserts, and I concur, that the Kenyan EMS

System is in high demand due to the high burden of both man-made and natural disasters. She therefore

opines that more research studies should be undertaken in order to explore the potential of the Kenyan

PHEMS System. In conclusion, Michelle recommends that, “It is a priority to create an evidence-based

report to provide the gold standard for development of EMS in Kenya, support the work already being

done, and guide the way forward”17 as the first step to solving Kenya’s complex issues.

15
Michelle Thompson, ‘A Comprehensive Review of the Emergency Medical Services System in Kenya’ (Michelle Thompson Thesis) (Master of Public
Health thesis, Emory University 2013)

16
Michelle Thompson Thesis 8
17
Michelle Thompson Thesis 6

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 1.7.2. The State of Emergency Care in the Republic of Kenya18

In this journal article Benjamin Wachira and Ian Martin analyze the status of the Kenyan emergency

medicine in general with three paragraphs on the PHEMS component. In their publication, Wachira and

Martin refer to Jeffrey Arnold’s classification of emergency medical systems 19 and assert that Kenya’s

PHEMS is underdeveloped and thus properly falls under the lowest classification. In their findings,

majority of the patients in Kenya are transferred to the hospitals by private means such as taxis, cars,

among others as very few get transferred by ambulance. In my opinion, this article portrays that

internationally, the PHEMS System is a crucial yardstick in measuring the level of development of the

health sector in a country but it receives little regard in Kenya.

1.8. Justification of the Study

The PHEMS System has cut a niche globally as the first line of health care intervention and the

foundation of every health care system. However, the Kenyan PHEMS System is underdeveloped and

under-researched.20 Consequently, there is a lack of understanding of its role, contribution and

relevance in the health sector. As a result, it is neglected and not integrated into the dominant health

sector. The purpose of this study is therefore threefold as follows;

a) To build a body of literature to guide policy makers, researchers and other stakeholders.

b) To analyze it as a sustainable model of health service delivery to improve the deteriorated

state of the health sector.

18
Benjamin Wachira and Ian Martin, ‘The State of Emergency Care in the Republic of Kenya’ (2011) 1 African Journal of Emergency Medicine 160.
Doi:10.1016/j.afjem.2011.10.008

19
Jeffrey Arnold, ‘International Emergency Medicine and the Recent Development of Emergency Medicine Worldwide’ (1999) 33 Annals of Emergency
Medicine 98

20
Michelle Thompson Thesis 24, 25

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 c) To promote an understanding of the PHEMS System, eradicate ignorance and consequently

spur reforms leading to a functional EMS System that is responsive to the best interests of the

consumers of health care products and health services.

Moreover, the importance of focusing on the PHEMS System and this study can be best summarized by

Katie Nelsel et al, who argue and I agree that, since ‘most deaths occur before the patient has a chance

to get to the hospital, focus on pre-hospital care systems is essential.’ 21

1.9. Limitations of the Study

This study is limited to the role, relevance and contribution of the Anglo-American model of a formal

PHEMS System as currently practiced in Kenya in the out-of-hospital settings. Studies of Franco-German

and hospital based Emergency Medical Services (EMS) are excluded. I acknowledge the limited literature

in this area of study but fortunately, I will draw from my observation, experience and practice in Kenya as

a PHEMS practitioner, an EMS consultant and an intern at the Kenyan Ministry of Health to access,

exploit the available sources and offer professional insight.

1.10. Research Methodology

This study uses the qualitative approach of research. On data collection, I intend to rely on various

primary and secondary sources. The primary sources will include but not limited to informal discussions

with PHEMS experts, operational personnel, policymakers and other stakeholders. Applicable case law

and legislation will also be considered.

21
Katie Nielsen et al, ‘Assessment of the Status of Prehospital Care in 13 Low- and Middle-Income Countries’ (2012) 16 (3) Journal of Prehospital
Emergency Care 381. Doi:10.3109/10903127.2012.664245

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My secondary sources will involve a desk- based literature review of universal frameworks, books, expert

guidelines, journals, dissertations, articles, documents, government statements, reports, policy documents

and any other relevant literary works on the subject matter. In addition, I will use internet sources, and

newspapers to supplement any gaps on information sources.

In determining the appropriate sources and data extraction, I will use the Systematic Review approach.

The results will then be screened based on their titles, abstracts and authors irrespective of the language or

date of publication.

1.11. Conclusion

A Pre-hospital Emergency Medical Services Systems is a critical component of any health sector. Since

the Kenyan PHEMS System has been neglected due to lack of information, it is my full faith and belief

that this study will showcase its role, contribution and relevance in order to inspire its integration into the

health sector frameworks.

1.12. Chapter Breakdown

Subject to approval of this research proposal and the subsequent research paper, I will expand this paper

into a dissertation where the following chapters will be discussed;

1.12.1. Chapter 1: Introduction (research proposal)

1.12.2. Chapter 2: Analysis of the right to the highest attainable standard of health

1.12.3. Chapter 3: Conceptual framework on Pre-hospital Emergency Medical Services Systems

1.12.4. Chapter 4: Comparative analysis on the role, contribution and relevance of PHEMS Systems

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 1.12.5. Chapter 5: Findings on the role, contribution and relevance of the PHEMS System to the

Kenyan health sector

1.12.6. Chapter 6: Conclusion

1.12.7. Chapter 7: Recommendations from the lessons learnt

1.13. Bibliography

1.13.1. Books

American College of Surgeons, Advanced Trauma Life Support: Student Course Manual (9th Edition,

Hearthside Publishing Services 2012)

Eisenberg MS, Life in the Balance: Emergency Medicine and the Quest to Reverse Death (1st Edition,

Oxford University Press 1997)

1.13.2. Scholarly writings

Page C, et al, ‘Analysis of Emergency Medical Systems Across the World’ (BSc. Interactive Qualifying

Project, Worcester Polytechnic Institute 2013)

Thompson MJ, ‘A Comprehensive Review of the Emergency Medical Services System in Kenya’

(Master of Public Health thesis, Emory University 2013)

1.13.3. The constitution and statutes

The Constitution of Kenya, 2010

The Labour Relations Act, 2007

1.13.4. International legal instruments

The Abuja Declaration, April 2001

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1.13.5. Judicial and tribunal decisions

Jesca Moraa (On behalf of the late Alex Madaga Matini) v PCEA Kikuyu Hospital & 4 Others, by The

Kenya Medical Practitioners and Dentists Board (KMPDB), Preliminary Inquiry Committee Case No.

40 of 2015.

Jesca Moraa (On behalf of the late Alex Madaga Matini) v Kenyatta National Hospital & another by

KMPDB Professional Conduct Committee Case No. 2 of 2016.

Bainito Mateny Ichemi and Jesca Moraa Maosa v Josephine Mbuthia and Zacheus Kuria Mungai as

CMCC No. 6426 of 2016 at the Chief Magistrates Court in Nairobi.

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