By Omar Athman and Naadya Kassim
Introduction
The High Court of Kenya has recently delivered a precedent setting judgment in Naila Qureshi & Another vs Dr. Raffique Parker & 2 others Case Number CC 610 OF 2007 that reinforces the centrality of informed consent in medical practice. By anchoring its decision in Article 43 of the Constitution, which guarantees every individual the right to the highest attainable standard of health and aligning its findings with the ethical commitments of the Hippocratic Oath, the Court elevated the duty of care owed by medical practitioners to a new constitutional and ethical benchmark.
The judgment signals a critical shift in Kenya’s medical jurisprudence, particularly in a landscape where medical negligence claims are often muted by silence, societal stigma, or systemic inertia. In doing so, the Court not only awarded justice to a deserving victim but also issued a compelling call to action for the medical profession and regulatory bodies.
The Constitutional Right to Health and Ethics of Care
At the heart of the Court’s pronouncement lies a reaffirmation of Article 43 of the Constitution, which enshrines the right to health, including reproductive health care. This right is not aspirational, but it is justiciable and binding. Medical practitioners, as duty bearers, must discharge this obligation within the parameters of law and ethics.
The ethical underpinning of the ruling rests heavily on the principles of bodily autonomy, patient dignity, and self-determination notions long embedded in both international human rights law and bioethics. The decision sharply critiques the historical medical culture where patients, particularly women, were often passive recipients of care rather than active participants in decisions about their bodies.
Judicial Pronouncement: A Turning Point
In the recent decision, the High Court considered whether a surgeon’s removal of a patient’s cervix-without her explicit consent constituted a violation of her rights. The patient had agreed to the removal of her uterus and ovary, but the additional removal of the cervix was neither discussed nor authorised.
The Court found for the plaintiff, holding that the surgical intervention was not only unethical but unlawful. It violated the patient’s right to informed consent and amounted to an intrusion upon her bodily autonomy. In line with Section 9 of the Health Act, which mandates the right to consent before medical services are rendered.
The decision has affirmed that informed consent is not only a requirement by the law but allows room to allow patients to make decisions with respect to their health and well-being. For a patient to give his or her informed consent the six elements that constitute to what is an informed consent outlined in the case of Canterbury v Spence 464 F2d 772 Washington D.C 1972 must be met:
- Awareness of Diagnosis – The patient must know and understand the medical condition diagnosed.
- Understanding of Diagnostic Procedures – The patient should be informed of any tests necessary to confirm the diagnosis.
- Explanation of the Proposed Procedure – The surgical or medical intervention must be described in accessible, layman’s terms.
- Disclosure of Risks – Both inevitable (frequent) and collateral (indirect) risks must be disclosed.
- Presentation of Alternatives – All viable treatment options, whether conservative or surgical, must be explained.
- Expected Outcomes – The probable outcomes and results should be communicated in sufficient detail.
By affirming this framework, the Court clarified the legal threshold for informed consent and held the practitioner liable for breaching it. Crucially, the Court also emphasized that informed consent is not a one-time form or signature it is a process of continuous communication and understanding.
Institutional Liability and the Evolving Role of Hospitals
Another notable aspect of the decision was the Court’s recognition of the hospital’s institutional responsibility. Traditionally viewed merely as venues for treatment, hospitals are now providers of care and therefore bear an active duty to ensure that all medical practitioners under their roof are duly qualified, competent, and compliant with the standards set by the Medical Practitioners and Dentists Council (MPDC).
Hospitals must vet their staff and ensure that practitioners disbarred or deregistered by the MPDC are not allowed to continue practicing. Failure to do so exposes hospitals to claims of vicarious liability and breaches of public trust in the medical profession.
Reaffirming Trust and Accountability in Medicine
The Court acknowledged that patients often place their lives in the hands of doctors, driven by a deeply rooted trust in their skills and integrity. As such, the medical profession carries a sacred societal responsibility which is to preserve life and uphold the dignity of the patient. This responsibility is underscored by the Hippocratic Oath and now, increasingly, by constitutional norms and judicial enforcement.
In reminding the medical community of these obligations, the Court noted that medicine, like law, is a cornerstone of civil society. Its practice must evolve in tandem with social expectations, technological advancements and legal standards. Medical practitioners are no longer just healers, they are custodians of ethical decision-making in a rapidly shifting healthcare landscape.
Conclusion
In upholding the right to health and affirming the ethical foundations of medical practice, the High Court has issued a clarion call to all healthcare providers: the era of implied or assumed consent is over. The practice of medicine must now, more than ever, center the patient not just as a beneficiary of care, but as a rights-bearing individual with agency and dignity. This decision marks a defining moment in Kenyan medical jurisprudence. It affirms that informed consent is not just a medical formality, but a constitutional imperative a shield protecting patients and a standard by which all medical care must be judged.