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The High Court has declared confinement in prison of TB patients who are not willing to take medication unconstitutional.
Justice Mumbi Ngugi ordered the Ministry of Health to publish new policy guidelines within 90 days on how patients with infectious diseases should be handled.
In her judgement yesterday, Ngugi also gave the Government 30 days to issue a new circular to all hospitals and other health centres that the law does not allow health officials to arrest and imprison TB patients who have refused to take medication.
“Given the state of prisons in the country, which are mostly overcrowded, they are not the right isolation centres to confine TB patients. The detention of the three persons was not within the law and international guidelines on TB treatment, therefore the confinement was unlawful,” she said.
The judge was ruling in a case filed by three brothers; Daniel Ngetich, Henry Ngetich and Patrick Kirui who were jailed on August 12, 2010 for defaulting on their TB treatment.
The three were initially remanded in police cells but later charged in a magistrate's court in Kapsabet and were jailed for eight months.
Ngugi noted that despite lack of enough facilities for handling TB patients, who are unwilling to take medication, it was against the Public Health Act to arrest and confine in prison such patients, saying they need social support.
“Prison is the worst place to confine a TB patient and therefore isolation is not intended to be punitive and patients should be accommodated in a good facility,” said the judge.
TREATMENT PURPOSES
After their release, having served for two months following the intervention of Kenya Legal and Ethical Issues Network on HIV/Aids (Kelin), Daniel, Henry and Patrick moved to the High Court in Eldoret through their lawyer Allan Maleche, challenging the move by health officials. They said it was a violation of their rights.
Maleche had argued that the Prison Act does not provide for isolation facilities for TB patients and holding them in prison does not only put them at risk but also that of other prisoners and warders.
Kelin also sought to challenge the widespread practice adopted by public health officers of seeking court orders to confine TB patients for purposes of treatment.
The High Court in Eldoret referred the matter to the judicial review division in Nairobi for interpretation.
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