On the role of medical internship towards the progressive realisation of the right to health in Kenya

Introduction

 In the preamble of the World Health Organisation, health is defined as a state of complete physical, mental and social well- being and not merely the absence of disease or infirmity. As noted by Ellen Gould White, health is a great treasure. It is the richest possession that mortals can have. Wealth, honour, or learning is dearly purchased, if it be at the loss of the vigour of health. None of these attainments can secure happiness if health is wanting.1 Good health guarantees happiness and thus it is accrued to every individual as a fundamental right in both the Constitution and the international Covenants.

The Constitution of Kenya guarantees each and every Kenyan the right to highest attainable standards of health and that it shall be progressively realised.2 The doctors play a key role in ensuring that the right is enjoyed by every Kenyan. The government recognising this has ensured that they are afforded good working environment with quality facilities over the past years. Despite the efforts, some steps have been taken by the government that hinder the realisation

of the right to health. The scaling down of the salaries for the medical interns has

posed a threat to the right to health as the interns who are most actively involved in the realisation of the right face the risk of living below their means.

The scaling down of salaries offers a stumbling block to the progressive realisation of the right to health. The government should then understand and appreciate the importance of medical internship in the realization of the right to health.

Internship

 Internship in the public service is a planned and structured programme that provides work experience for a specific period of time allowing young people the opportunity to consolidate and translate the skills learned from their training into a meaningful, relevant and practical on-the- job experience.3 The internship program aims to enhance youth development and employability by creating clear linkages between education, training and work; provide hands-on experience to build upon skills learned in the classroom; fulfil the legal requirement for registration by professional bodies; develop a culture of high quality life-long learning, positive work habits and attitudes; and establish a supply pipeline of skills to the public service.4

In the medical field, internship training is a legal requirement that allows themedical or dental graduate to consolidate their knowledge, skills and attitudes to enable them to be competent medical or dental practitioners; acquire knowledge of commonly used drugs and their rational use, be conversant with the National Essential Drugs List and know the Dangerous Drugs & Poisons Act and its application and utilise the current Ministry of Health Standard Treatment Guidelines, WHO treatment guidelines and any other relevant standard guidelines in patient management.5

Duration and content of internship

 Every medical officer intern shall be required to undergo an internship training program for a period of twelve months, and an additional one calendar month of paid leave.6 The rotations are outlined as follows: Internal Medicine including Dermatology for eleven weeks; Surgery including ENT and Ophthalmology for eleven weeks; Paediatrics and Child Health for eleven weeks; Obstetrics and Gynaecology for eleven weeks and Mental Health for eight weeks. Every dental officer intern shall be required to undergo an internship training program for a period of twelve months, and an additional one calendar month of paid leave.7 The intern shall concurrently acquire skills in the dental disciplines outlined below, throughout the period of internship: Oral and maxillofacial surgery; Conservative and prosthetics dentistry; Orthodontics and Paediatric dentistry and Periodontology.

doctor

Every intern, whether medical or dental, shall participate in community health practice as part of the internship programme where they provide health services to the community.To facilitate adequate learning environment, interns shall be posted within a month upon successful completion of their training and passing of the final examination, graduation notwithstanding; or passing of council’s internship qualifying exams and their salaries shall be processed and payment commenced within two months. Upon successful completion of internship, the medical superintendent shall recommend the intern for registration after which they can practice as competent medical practitioners.

Significance

Yingxi Zhao8 notes that the internship years are a time when trainees make their initial career decisions. The short rotations between different clinical teams during internship can shape junior doctors’ perceptions of professional roles and identities and are important in influencing which speciality areas they enjoy most and feel most suited to, and where they might prefer to work. This was well informed by the responses given during interviews during the study. From the two medical officers interviewed, it is clearly evident that internship is an integral part of the medical profession and should not be treated lightly by the ministry of health and the government.

“And so the hospital I worked at had a very good mental health department so I was also drawn to considering pursuing mental health so maybe psychiatry. Then they also were really good with research although you know . . . they don’t publish any research findings because of national security, so at least it also pushed me towards the path I’m in right now”.9 (Kenyan medical officer)

“Because internship puts you in the actual workplace. When you’re in medical school, you are seeing things from outside almost . . . So when you go into internship, you’re like in the real life medical situation, you have decisions to make, and you’re the one in charge of particular tasks and stuff like that. So it makes you see how you could potentially be like living for the rest of your life.10 (Ugandan medical officer)

Regulation of wages

 The payment of interns should reflect the amount of work and the type of services the Interns are rendering to the country. The regulation of wages for the Interns must be reasonable and should be done in ways that maximise the realisation of the right to highest attainable standard of health.An unreasonable decision is one that gives undue relevance to facts that in reality lacked the relevance for being considered in the decision-making process; fails to give relevance to facts that were relevant and worthy of being considered in the decision making process and one that is completely absurd, a decision so unreasonable that no reasonable authority could have possibly made it.11 The scaling down of the salary of Interns from Ksh. 206,000 to Kshs. 70,000 is clearly unreasonable and should be revised by the Kenyan government.

Adam Smith disapproved of the law of the 8th of George III, passed in 1768, which limited the wages that masters could offer and that workmen could accept, for it was in favour of the masters and put the ablest and most industrious upon the same footing with an ordinary workman.12 It is true that all interns must be treated equally but with the work that medical interns have at their desk they deserve a better pay and must not be put on the same footing with an ordinary workman.

In discussing the wage contract, Smith acknowledged that masters had more bargaining power than their servants more often. Smith noted the motivations for government regulations aimed at affecting wages when he said that “Whenever the legislature attempts to regulate the differences between masters and their workmen, its counsellors are always the masters. Whenever the regulation, therefore, is in favour of the workmen, it is always just and equitable; but it is sometimes otherwise when in favour of the master”.13 The regulation of wages is thus just and equitable if it favours the medical interns and any scaling down of the salaries must be reasonable to preserve the dignity of the profession.

Right to highest attainable standard of health

 The Constitution provides for the right to life;14 right to a clean and healthy environment;15 right to the highest attainable standard of health, which includes the right to health care services, including reproductive health care16 and the right of children to basic nutrition, shelter and health care.17 The State shall put in place affirmative action programmes designed to ensure that minorities and marginalised groups—(e) have reasonable access to water, health services and infrastructure.18

Article 20 of the Constitution provides that every person shall enjoy the rights and fundamental freedoms in the bill of rights to the greatest extent consistent with the nature of the right or fundamental freedom and progressive realisation of the right to highest attainable standard of health.19

Progressive realisation of the right to health

 The Grootboom Case20

In Grootboom, the court discussed what is entailed by the obligation to take reasonable legislative and other measures, within the available resources of the state, so as to realise a socio-economic right– in this instance, the right of access to housing. The government had understood this obligation as requiring the progressive provision of ‘permanent residential structures’ and to this end, it had enacted legislation and instituted programs aimed at providing houses to an increasing number of people over time.

The constitutional court, settled upon the term ‘reasonable’ to evaluate the measures implemented by the government, clearly taking advantage of the fact that Section 26(2) requires the state to take ‘reasonable legislative and other measures’ to achieve the progressive realisation of socio- economic rights. It was established that reasonableness requires that a program implemented in order to realise a socio-economic right must be comprehensive, coherent, balanced and flexible. More importantly, the Court insisted that a program that excludes a significant sector of society cannot be said to be reasonable and that those whose needs are most urgent and whose ability to enjoy all rights is therefore most in peril, must not be ignored by the measures aimed at achieving realisation of the right… If the measures, though statistically successful, fail to respond to the needs of the most desperate, they may not pass the test.

The scaling down of the salaries of interns contrary to the collective bargaining agreement of 2017 is a program that has hindered the progressive realization of the right to health necessitating the doctor’s strike that has been going on for more than a month thus hindering a significant sector of the Kenyan population from enjoying the right. Many Kenyans have failed to get treatment at the public hospitals making the health care system in Kenya neither accessible nor available. The government must then reconsider its actions to ensure it fulfils its constitutional obligation of promoting, respecting and realising the right to highest attainable standards of health.

The committee on economic, social and cultural rights

 In paragraph 9 of General Comment 3 the Committee on Economic, Social and Cultural Rights says “The concept of progressive realisation constitutes a recognition of the fact that full realisation of economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense, the obligation differs significantly from that contained in Article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that the realisation over time or in other words progressively is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. The Committee is of the view that a minimum core obligation to ensure the satisfaction of at the very least, minimum essential levels of each of the rights is incumbent upon every state party. Thus, for example, a state party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care or basic shelter and housing, or the most basic form of education is prima facie failing to discharge its obligations under the Covenant.”21

The Limburg principles interpret the progressive realisation of rights as follows: “the obligation to achieve progressively the full realisation of the rights requires the State parties to move as expeditiously as possible towards the realisation of the rights. Under no circumstances shall this be interpreted as implying for states the right to defer indefinitely efforts to ensure full realisation. On the contrary, all State parties have the obligation to begin immediately to take steps to fulfil their obligations under the Covenant.”22

The government of Kenya being a state party of the Covenant has failed to discharge its obligations under the covenant as it has denied its citizens the right to affordable and quality healthcare for more than a month during the doctors’ strike. The unreasonable action of the government to scale down the salaries of the Interns threatens the enjoyment of the right to highest attainable standard of health. Instead of taking steps to realise the right, the government has taken steps that undermine the Constitution and the progressive realisation of the right.

Conclusion

 The medical interns play an integral role in the progressive realisation of the right to highest attainable standards of health thus the government ought to empty itself of ignorance and pride and appreciate them. This calls for the meeting of the doctors and the government to allow sober discussion on the regulation of the interns’ salaries.

But above all: I have a dream that one day Kenya, a state sweltering with the heat of corruption, sweltering with the heat of graft, will be transformed into an oasis of integrity and justice and the medical profession will be properly esteemed. But not only that. Let freedom ring from salty waters of Indian Ocean. Let freedom ring from the fresh waters of Lake Victoria. Let freedom ring from every street and highways of Nairobi, from every county. Let freedom ring . . . When we allow freedom to ring—when we let it ring from every city and every hamlet, from every county and every village, when we all come out to fight for the doctor’s rights we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, “Free at last, Free at last, Great God a-mighty, We are free at last.”23 Free from unaffordable healthcare, free from unjust regulations to affordable health care and to widest possible enjoyment of the right to highest attainable standards of health.