17 Aug “The Poor Person is Meant to Die”: Uganda’s Failing Health System in the Context of COVID-19
Onen Cylus is an LLB finalist at Makerere University. He is also currently working as an intern with the International Commission of Jurists, with a passion for research and human rights activism.
Timothy Fish Hodgson is a Legal Adviser for the International Commission of Jurists.
In late June 2021, Ms Angel Nakasango, a resident of Kampala, Uganda was critically ill with COVID-19 and required emergency medical attention. Instead of receiving such attention, she died in an ambulance, after spending the last hours of her life being sent from pillar to post between three private hospitals while she was in critical condition. All three hospitals required her family to make large upfront payments as a condition for her admission, thus ultimately leaving her stranded without the appropriate medical treatment.
Ms Nakasango’s well publicized tragedy is a particularly alarming illustration of general state of healthcare in Uganda, as the country faces a second wave of the COVID-19 pandemic. Sadly, and in a clear reflection of the deplore state of Uganda’s health system, “omwavuwakuffa” has become a well-known jocular saying in Uganda, meaning simply “the poor person is meant to die”.
COVID-19 and Privatization of Healthcare in Uganda
One of the biggest threats to the accessibility of healthcare services in the country is the privatization of health services, and corresponding underfunding of healthcare due to an increase in commercialization and commodification of the health sector. Approximately 55% of all health facilities in Uganda are private or community owned with the Ugandan government having actively promoted so called “public private partnerships” in the health sector. The Ugandan public health system is poorly funded and underequipped, in part as a result of this trend towards privatization. A large proportion of those accessing health services in the country have to pay for their healthcare services.
In the midst of the pandemic, and on the request of private health actors, the government opened up the testing and treatment for COVID-19 to private actors, accrediting some private health facilities to treat COVID-19. A damning report published by the Initiative for Social and Economic Rights characterizing the pandemic as a “cash bonanza for the private sector”, documents that the private sector has overcharged for testing, treatment, hospital admissions with even those COVID-19 patients with medical aids being charged exorbitant out of pocket expenses.
Some private facilities, for instance, have charged up to 5 million shillings ($1400) per day to treat a critically ill patient. These extortionate fees for treatment have been extended to COVID-19 testing, and people are required to pay up to 280,000 shillings ($80) at private health facilities merely to know their COVID-19 status. Perhaps most starkly, in the midst of medical oxygen shortage in the public hospitals, private facilities took advantage by hiking the costs for accessing oxygen, and there have been reports of individuals paying over 1 million shillings ($283) daily for oxygen, putting the lives of those who are cannot afford to make these payments in further danger.
Under-regulating of the Private Sector
Given Uganda’s seemingly unflinching enthusiasm for public-private partnerships in health, it is perhaps unsurprising that the private health sector in Uganda remains largely underregulated by the State. As ISER has noted the government “predominantly focuses on promoting public private partnerships rather than regulat[ing]” them as Uganda is required to do to protect the right to health pursuant to its international and domestic legal obligations.
The private sector’s success in charging exorbitant fees in the context of COVID-19 therefore speaks both to regulatory failures in Uganda’s COVID-19 response and the general need to improve the regulation of private health actors. Indeed, Ministry of Health officials themselves have claimed that they do not have the power to regulate prices charged at public health facilities in terms of Uganda’s Public Health Act. Irrespective of where the responsibility lies, this state of affairs has left patients at the mercy of the forces of demand and supply in the context of a burgeoning public health crisis.
ISER itself therefore recommends the development of “a comprehensive policy on regulation of the private sector.” However, more immediate regulatory responses are also needed, failing which accreditation and approval given to private health facilities to treat COVID-19 might have to be reconsidered entirely. Given the urgency of the situation and the apparent reluctance of the government to regulate the private health sector, Ugandan CSOs have also turned to courts for more immediate protection.
Court Interventions to Protect the Right to Health
After continued public outcry over the exorbitant daily charges for the treatment of COVID-19 in private health facilities, the Center for Human Rights Development (CEHURD) approached the High Court of Uganda to challenge the government’s failure to regulate the prices charged in private health facilities in terms of Public Health Act and the Medical and Dental Practitioners Act.
In CEHURD V. AG, CEHURD argued that the government of Uganda through the Ministry of Health has the obligation to regulate medical fees chargeable by health facilities in the treatment of persons suffering from COVID-19, an obligation it had been abdicating to the detriment of the wellbeing and general safety of people living in Uganda. CEHURD asked the Court to order the government to regulate fees chargeable in order to reduce soaring prices, and to require the Uganda Medical and Dental Practitioners Council to make recommendations to the Minister of Health on reasonable rates chargeable for persons seeking and accessing COVID-19 treatments.
This litigation was settled out of court, with an order of court by consent issued. In terms of this consent order, the Minister of Health agreed to intervene by issuing regulations on fees chargeable by health facilities for the management and treatment of patients suffering from COVID-19, based on recommendations from the Medical and Dental Practitioners Council, which are yet to be made.
Similarly, the Health Equity and Policy Initiative (HEAPI) filed a case in the High Court arguing that government’s failure to regulate and standardize rates and pricing of medical services in private health facilities violates patients’ rights to be free from torture or cruel, inhuman or degrading treatment, as well as their rights to life, health, human dignity equality and freedom from discrimination, all enshrined in the Constitution of Uganda as well as international human rights law. HEAPI also argued that the Minister of Health has a statutory obligation to regulate the cost of healthcare in the country, and that this had to be done after consultations with the relevant stakeholders, with the final rates shared with the public.
The Court has not ruled in this matter which had been initiated on 29 June 2021, though submissions have been concluded. This case differs from the CEHURD case in that it addresses the issue of regulation of the private health providers not only in respect to the treatment of COVID-19, but also extends to the provision of health services by the private sector more generally.
Charting a Way Forward
At the global level, the Committee on Economic, Social and Cultural Rights (CESCR) warned at the outset of the pandemic that because “health-care systems and social programmes have been weakened by decades of underinvestment in public health services and other social programmes” they may be “ill equipped to respond effectively and expeditiously to the intensity of the current pandemic”. It therefore recommended “extraordinary” resource mobilization by States to ensure coordinated responses to the COVID-19 pandemic.
The CESCR’s warnings ring true in Uganda, where a gradual privatization and commercialization of social services like health having hollowed out the public health systems ability to operate generally and to respond to public health emergencies in particular. The price gouging that led to the death of Ms Nakasango vividly illustrates the very real life (and death) risks of the commodification of health services and State failures comply with international and domestic human rights law obligations to regulate the private health sector.
Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and its sister provision in the African Charter on Human and People’s Rights, require Uganda to take all appropriate measures to ensure the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”, which clearly include COVID-19. This requires, in particular, that all health services are “economically accessible” and “affordable” to allow people without discrimination of any kind.
None of this is out of keeping with Uganda’s Constitution, which has been interpreted by the Ugandan Supreme Court, in light of Uganda’s obligations in terms of ICESCR, to include protection of the right to health. In doing so the Court has explicitly drawn on the CESCR’s General Comment 14. Though the circumstances in Uganda are dire and the costs of the governments failures to comply with its domestic law and its international legal obligations have been catastrophic, it is hoped that the Ugandan Courts continue to fulfil their duty in acting as guardians of human rights and the rule of law. The litigation brought by CEHURD and HEAPI provide a glimmer of hope that Ugandan courts have not yet accepted that “poor people are meant to die”. Neither should we.