THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF HEALTH: THE

RELEVANCE OF PRE-HOSPITAL EMERGENCY MEDICAL SERVICES IN THE KENYAN

HEALTH SECTOR

BY: BRIAN BEAUTTAH MIGIRO*1

G34/3373/2014

GPR 421: RESEARCH PAPER

RESEARCH PAPER SUBMITTED TO THE UNIVERSITY OF NAIROBI IN PARTIAL

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

FEBRUARY, 2018

NAIROBI, KENYA.

1
*Brian Beauttah Migiro 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 founding Secretary General of the EMS Providers Welfare Association of Kenya. More still, he is a
current volunteering 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) & Vice Chairperson to the KCEMT
Organizational & Development Committee.

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DECLARATION

I, BRIAN BEAUTTAH MIGIRO, do hereby declare that this Research Paper 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 …01 February 2018……………

BRIAN BEAUTTAH MIGIRO (G34/3373/2014)

SUPERVISOR APPROVAL

This Research Paper 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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 ABSTRACT

Extensive research has shown 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 as an effective reform to strengthen the

connected health sectors. However, 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.

Consequently, a qualitative study was undertaken using the systematic review approach in order to

critically examine the relevance of the PHEMS System to the Kenyan health sector. It was hypothesized

that the stated neglect is attributable to a paucity of research and lack of information on the PHEMS

System.

This paper thus presents the findings of the said study by outlining the contribution of the PHEMS

System vis-à-vis the elements of the right to the highest attainable standard of health. In conclusion, I

upheld the findings that the PHEMS System is a preeminent and relevant component in the Kenyan

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

LIST OF ABBREVIATIONS

CESCR Committee on Economic, Social and Cultural Rights

EMS Emergency Medical Services

EMT Emergency Medical Technician

ICESCR International Covenant on Economic, Social and Cultural Rights

KNPRC Kenya National Patients’ Rights Charter of 2013

PHEMS Pre-hospital Emergency Medical Services

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 TABLE OF CASES

1. 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.

2. 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.

3. 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.

4. R v Erick Joseph Njagi Ndwiga [unreported] of December 2017 at the Senior Resident

Magistrates Court in Embu.

TABLE OF LEGISLATIONS

1. The Constitution of Kenya, 2010

2. The Health Act No. 21 of 2017, Laws of Kenya

3. The Traffic Act Cap 402 of the Laws of Kenya

LIST OF INTERNATIONAL LEGAL INSTRUMENTS

1. Constitution of the World Health Organization, 1946

2. International Covenant on Economic, Social and Cultural Rights, 1966

3. African Charter on Human and People’s Rights, 1981

4. Article 14 of the African Charter on the Rights and Welfare of the Child, 1990

5. Abuja Declaration, April 2001

6. Vienna Declaration and Program of Action, June 1993

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 7. Committee on Economic Social and Cultural Rights General Comment No. 14: The Right to the

Highest Attainable Standard of Health, May 2000

TABLE OF NATIONAL POLICY FRAMEWORKS

1. The Kenya Health Policy, 2014 - 2030

2. The Kenya Health Sector Referral Strategy, 2014 - 2018

3. The Kenya National Patients’ Rights Charter, 2013

4. The Traffic Regulations, 2012

TABLE OF CONTENTS

DECLARATION ……………………………. …………………………………………………... II

ABSTRACT ……………………………. …………………………………………………... III

LIST OF ABBREVIATIONS …………………………. ……… ……………………………….. III

TABLE OF CASES ……………………………. ………………… ………………………………IV

TABLE OF STATUTES ……………………………. ………………… ………………………IV

TABLE OF INTERNATIONAL LEGAL INSTRUMENTS …. ………………………………..IV

TABLE OF NATIONAL POLICY FRAMEWORKS …. …………………………….… V

TABLE OF CONTENTS …………………………. …………………………………………..… V

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

1.1. Introduction and the systems approach to the right to health ………………..… ….. 1

1.2. Place of the Pre-hospital Emergency Medical Services System in the health sector … 2
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 1.3. The status of the PHEMS System in the Kenyan devolved health sector ………..….. 3

2.0 LEGAL ANALYSIS OF THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF

HEALTH ………………………..………………………….………………………......... 9

3.0 RELEVANCE OF THE PRE-HOSPITAL EMERGENCY MEDICAL SERVICES (PHEMS)

SYSTEM IN THE KENYAN HEALTH SECTOR ……………………………..……... 10

3.1. Overview of the contribution of the PHEMS System vis-à-vis the elements of the

highest attainable standard of health ………………………………………..…….. .. 10

3.2. Accessibility: Improved accessibility to healthcare and service delivery …………....... 11

3.3. Availability: Enhanced availability of health care and services ………...………….. ....14

3.4. Acceptability: Adherence to acceptable standards ..…………………………………... 15

3.5. Quality: Quality assurance in service delivery .…….………….…………………… ... 15

4.0 CONCLUSION AND RECOMMENDATIONS FOR PHEMS IN KENYA ……………..... 18

4.1. Conclusion ………………..…………………………..…………………………….... 18

4.2. Recommendations …………………………..…………….………………………….. 18

BIBLIOGRAPHY ……………………………………..………………………………………….... 23

a) Books …………………………..…. ………………………………………... 23

b) Scholarly writings ……………………………. ………………………….… 24

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 1.0 INTRODUCTION

1.1. Introduction and the systems approach to health

On 7th July 2017, Kenya ushered a new era of health reform through the Health Act, No 21 of 2017.

According to its preamble, this Act was intended 'to establish a unified health system' in a bid to realize

the constitutional threshold of 'the highest attainable standard of health.'2 Indeed, the effectiveness of the

systems approach to health sector reforms has been theorized under the General Systems Theory.3

Basically, this theory is based on the premise that the health care system comprises of various

components4 and sub-systems5 that are interdependent and which must seamlessly interact to guarantee

the best consumer outcomes. Moreover, while making the case for unification of the various

components and sub-systems, Hunt and Backmann contend that an accessible, effective and integrated

health system forms ‘the heart of the right to the highest attainable standard of health’.6

However, while the Health Act recognized and tried to unify the above mentioned medical systems, the

conventional medical system only focused on the hospital based system while sidelining and neglecting

the pre-hospital system of medical care. It is noteworthy further that for over 20 years since the

introduction of a formal Pre-hospital Emergency Medical Services (PHEMS) System in Kenya, the

Government of Kenya has continued to ignore and sideline it from major health sector reforms,

2
The Constitution of Kenya, 2010. Article 43 (1) (a).
3
Ludwig von Bertalanffy, General System Theory: Foundations, Development and Applications (George Braziller Publishing 1968). The General
Systems Theory was propounded by Ludwing Von Bertalanffy in 1968 and popularized by various scholars.
See also; Charissa Cordon, ‘System Theories: An Overview of Various System Theories and its Application in Healthcare’ (2013) 2 (1) American
Journal of Systems Science, 13. DOI: 10.5923/j.ajss.20130201.03
4
These components (health system building blocks) are health resources; health financing; health infrastructure; health products and technologies;
health work force; health information; health leadership and governance; organization of programs; as well as strong health plans and evidence based
policies.
See; 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). 37 as read with the World Health Organisation System Building Blocks.
See also; Milton Irwin Roemer, National Health Systems of the World: The Countries (Oxford University Press 1991) Volume 1
5
In Kenya, the health sector is made of three main medical sub-systems that include the dominant conventional medical system, the traditional medical
system and the complementary medical system. See Section 2 of the Health Act, No. 21 of 2017 defines "alternative medicine" as complementary
medicine (complementary medical system) which includes a broad set of health care practices that are not part of Kenya's tradition (traditional
medical system) and are not integrated into dominant health care system (which is also known as the allopathic or conventional medical system).
6
Paul Hunt and G. Backman, ‘ Health Systems and the Right to the Highest Attainable Standard of Health’ (2008) 10 (1) PubMed, 81 <www.ncbi.nlm.
nih.gov/pubmed/20845831> accessed 13 February 2019

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institutions and frameworks. As such, this system is highly underdeveloped and under-researched in

Kenya.7 This raises a question as to whether it is an essential component in the Kenyan health sector.

Therefore, this study seeks to critically examine and establish the relevance of the Kenyan PHEMS

System within the context of the right to the highest attainable standard of health in order to inspire its

recognition and integration into the dominant healthcare model.

1.2. The place of the Pre-hospital Emergency Medical Services System in the Kenyan health sector

From my experience and practice,8 I can define the Pre-hospital Emergency Medical Services (PHEMS)

System as a comprehensive arrangement of well trained personnel, services, resources and institutions

that offer emergency response, rescue, assessment, stabilization, treatment and ancillary health care in

the pre-hospital and out-of-hospital settings as well as transportation to definitive care facilities for

further management. As it can be observed in many parts of the world, including Kenya, PHEMS is

mainly made up of the ambulance services which operate outside the hospital and other definitive care

facility set ups.9

In the Kenyan context, the Anglo-American model10 of the Pre-hospital Emergency Medical Services

System was formally introduced during the aftermath of the 7th August 1998 bombing of the United

States of America Embassy in Nairobi.11 Calls for the PHEMS System were based on the findings that

7
Michelle Thompson, ‘A Comprehensive Review of the Emergency Medical Services System in Kenya’ (Michelle Thompson Thesis) (Master of
Public Health thesis, Emory University 2013) 24
8
Brian Beauttah Migiro 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 founding Secretary General of the EMS Providers Welfare Association of Kenya. More still, he is a current
volunteering 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) & Vice Chairperson to the KCEMT Organizational &
Development Committee.
9
Owing to developments over the years, PHEMS has become a well-established discipline in clinical medicine that is practiced by a wide range of
practitioners who mainly comprise of Emergency Medical Technicians (EMTs) and paramedics but also include voluntary first aid workers, first
responders, remote medics, emergency care nurses and emergency physicians.
10
The different models of the PHEMS System are beyond the scope of this paper. See the following references on the differences between the Anglo-
American model and the Franco-German model of PHEMS Systems.See; Sultan Al-Shaqsi, ‘Models of International Emergency Medical Service
(EMS) Systems’ (2010) 25 (4) Oman Medical Journal320. doi:10.5001/omj.2010.92; Eelco H Dykstra, ‘International Models for the Practice of
Emergency Care’ (1997) 15 (2) American Journal of Emergency Medicine 208. <https://doi.org/10.1016/S0735-6757(97)90107-8>
11
Saade Abdallah, Rebekah Heinzen, & Gilbert Burnham, ‘Immediate and Long-Term Assistance Following the Bombing of the US Embassies in
Kenya and Tanzania’ (2007) 31 (4) Journal of Disasters 417. Doi :10.1111/J.1467-7717.2007.01017.X.
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the lack of emergency response, trained PHEMS personnel, and triage at the scene were known

contributors to the resultant high morbidity and mortality from the US Embassy disaster.12

Structurally, Pre-hospital Emergency Medical Services is categorized as a component of the emergency

medicine specialty. Per Jeffrey Arnold, emergency medicine begins in the pre-hospital setting where

Emergency Medical Technicians initiate emergency care which then continues to the hospital

emergency department where emergency physicians provide definitive emergency care.13 It is

noteworthy that Kenya formally recognized and classified emergency medicine as a medical specialty in

June 2017.14 In addition, different medical specialties form the conventional medical system of the

health sector.

As such, the Kenyan PHEMS System properly falls within the emergency medicine specialty of the

conventional medical system within the Kenyan health sector. The position that PHEMS is an

indispensable component of any health sector, was thus properly summarized by Kobusingye et al who

found that, 'a functioning system includes a pre-hospital care component, with emergency transportation

and treatment that links with emergency care at a hospital.'15

1.3. The status of the PHEMS System in the Kenyan devolved health sector

Devolution is ‘the transfer of governance responsibility for specified functions to subnational levels,

either publicly or privately owned, that are largely outside the direct control of the central

12
Michelle Thompson Thesis, Ibid n7. This incident resulted in over two hundred and twenty four (224) deaths and thousands of injuries.
13
Jeffrey Arnold, ‘International Emergency Medicine and the Recent Development of Emergency Medicine Worldwide’ (1999) 33 Annals of
Emergency Medicine 98
See also; Veronica Lindström, Katarina Bohm, &Lisa Kurland, ‘Prehospital Care in Sweden: From a Transport Organization to Advanced
Healthcare.’ [2015] Springer-Verlag Berlin Heidelberg, Accessed on 13 February 2019). DOI 10.1007/s10049-015-1989-1
14
Kenya Medical Practitioners and Dentists Board, ‘Gazetted Specialties’<www.medicalboard.co.ke/resources_page/gazetted-specialities/>, Para 23
Accessed on 13 February 2019
15
Olive Kobusingye, et al, ‘Emergency Medical Systems in Low- and Middle-Income Countries: Recommendations for Action’(2005) 83 (8) Bulletin
of the World Health Organization 626. Doi:/S0042-96862005000800017

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government.’16 In this regard and upon the promulgation of the Constitution of Kenya 2010, Kenya

adopted a system of devolution with two levels of government that are distinct and interdependent.17

Moreover, and based on this framework of devolution, various roles, powers, functions, competencies

and responsibilities were assigned to different levels of government as envisaged in Article 186 of the

the Constitution of Kenya 2010 as read with its Fourth Schedule. The Kenyan health sector was among

the devolved functions.

In health matters, the national government was mainly tasked with health policy, oversight of national

referral health facilities, disaster management as well as capacity building and technical assistance to the

counties.18 In order to unbundle these functions, Presidential Executive Order No. 1 of 201819 conferred

the mandate of the the Kenyan health care system upon the Ministry of Health in accordance with the

Constitution of Kenya 2010 as read together with Section 15 of the Kenya Health Act, No. 21 of 2017.

In general, the role of the Ministry of Health at the national level can be summed up as regulation,

standards management, research, coordination, resource mobilization, training of health personnel,

registration of doctors and para-medicals, capacity building, technical assistance and oversight over

national referral health facilities.

On the other hand, the framers of the Constitution conferred upon county governments the broad

mandate of service delivery and implementation of the rights envisioned under Article 43 of the

Constitution of Kenya 2010.20 Among them, the county governments were tasked with matters of county

16
Ian Ferguson & Cherukat Chandrasekharan ‘Paths and Pitfalls of Decentralisation for Sustainable Forest Management: Experiences of the Asia-
Pacific Region’ (2004) <http://www.cifor.org/publications/pdf_files/interlaken/Ferguson_Chandrasekharan.pdf> Pg 4. Accessed on 13 February 2019
17
Constitution of Kenya, 2010. Article 6(2). The two levels are the national government and 47 county governments
18
The Constitution of Kenya, 2010. Part 1 of the Fourth Schedule pursuant to Article 186 (1) and Article 187 (2)
19
Republic of Kenya: The Presidency, Organization of the Government of the Republic of Kenya (Government Printer, 2018). Part II, Page 28
20
This mode of devolution was in-line with the principle of subsidiarity which requires that ‘decision making and implementation are to be effected by
the level of government closest to the individual citizen.’ - Professor Ben Sihanya
See; Prof Ben Sihanya, ‘Devolution and Education Law and Policy in Kenya’ (Innovative Lawyering and Sihanya Mentoring, 1 October 2013) Pg 19.
<https://innovativelawyering.com/attachments/article/19/Devolution%20and%20education%20law%20and%20policy%20in%20Kenya%20working
%20draft.pdf> Accessed on 13 February 2019

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health services such as ambulance services, county health facilities, disaster management as well as the

promotion of primary healthcare.21

For purposes of clarity, the Kenya Health Act of 201722 specified the duties of County Health

Departments to further include: implementing national health policies and standards as laid out by the

Ministry of Health; service delivery including the maintenance, financing and further development of

devolved health institutions and services; facilitating the registration, licensing and accreditation of

healthcare personnel and service providers based on set standards by the Ministry of Health; promoting

health research, providing technical assistance platforms as well as supporting monitoring and

evaluation of the health sector.

Based on the highlighted constitutional provisions on the distribution of roles, it is my keen observation

that matters of health are a co-shared function within the concurrent mandate of both the county and

national government. As such, both levels of government share responsibility for the establishment,

integration, coordination and implementation of the Pre-hospital Emergency Medical Services (PHEMS)

System in Kenya. For instance, while the counties are charged with the exclusive mandate of operating

ambulance services which is a key component of the PHEMS System, the successful discharge of this

function is dependent upon the availability of registered Para-medicals, policy directions and minimum

standards which are a preserve of the national government.

Despite of this interpretation, there is a wide gap between the theoretical legal provisions and the

practical discharge of the assigned functions. According to the findings of the Taskforce on Devolved

Government,23 ‘Kenya has embraced devolution inheriting a weak local governance framework with

21
The Constitution of Kenya, 2010. Part 2 of the Fourth Schedule pursuant to Article 186 (1) and Article 187 (2). Paragraph 2 and 12
22
Kenya Health Act, No. 21 of 2017. Section 20
23
Republic of Kenya: Office of the Deputy Prime Minister and Ministry of Local Government, ‘Volume I: A Report on the Implementation of
Devolved Government in Kenya’ (2011) <https://www.scribd.com/doc/64712979/Final-Report-of-the-Task-Force-on-Devolved-Government> (A
final report of the taskforce on devolved government as established pursuant to Gazette Notice no. 12876 of 25 October 2010) (Report of Taskforce
on Devolved Government) Page 46. Accessed on 17 February 2019.

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many parallel systems at the local level, poor infrastructure and inadequate facilities... There are

also line ministries which are expected to provide services to citizens but can hardly cope with the

massive requirements of service delivery due to both inadequate resources, including shortage of staff.’

Up to date, these challenges continue to burden the Kenyan health system24 and thus explain in part,

why the PHEMS System has been neglected and sidelined from various health reforms by both levels of

government.

For instance and from my internship experience at the Ministry of Health’s Division of Emergencies and

Disaster Risk Management,25 it was my finding that there are insufficient and barely operational inter-

governmental frameworks in the health sector to support the PHEMS System. Further still, there is no

national policy on Pre-hospital Emergency Medical Services in Kenya, no national standards on the

training, registration, licensing and accreditation of the PHEMS personnel and service providers, no

scheme of service and criteria for recruitment of PHEMS personnel into public service, no formal

recognition of PHEMS personnel as health professionals, inadequate research into pre-hospital care and

limited opportunities for capacity building and technical assistance to county governments.

At the county level, a SWOT analysis26 conducted in Nairobi County in 201727 demonstrated a highly

dilapidated ambulance service with inadequate, under-staffed, under-equipped, unserviced, and

uncoordinated ambulances. Moreover, majority of the ambulance staff were found to be unskilled with

limited capacity to provide emergency care. Furthermore, there were no guidelines on Emergency

Medical Services, lack of a proper emergency call centre with a toll - free number, abundance of

24
Leah Kimathi, ‘Challenges of the Devolved Health Sector in Kenya: Teething Problems or Systemic Contradictions?' (2017) 62 (1) Africa
Development 25 <https://www.codesria.org/IMG/pdf/4-_kimathi_-
_challenges_of_the_devolved_health_sector_in_kenya.pdf?8844/6127ffba9f38c82c955f18f0ed683c8ea3f1363e> Accessed on 17 February 2019.
According to Leah, the key challenges facing the Kenyan health sector as of 2017 included capacity gaps, human resource deficiency, lack of critical
legal and institutional infrastructure, rampant corruption and a conflictual relationship with the national government.
25
Brian Beauttah Migiro, ‘Externship Field Report: The Legal Basis and Role of the Ministry of Health in the Provision of Emergency Medical Care’
(2019) (A fieldwork report submitted to the University of Nairobi in partial fulfillment of the Externship 1 Unit (GPR 437) following an attachment at
the Ministry of Health from 18 September 2017 to 22 December 2017.)
26
An analysis technique examining the strengths, weaknesses, opportunities and threats.
27
Nairobi City County, ‘County Strategic and Investment Plan for Health Sector Referral Services: 2018 - 2022’. Page 15 - 17.

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inappropriate emergency referrals, lack of an up to date directory of emergency service providers,

inadequate funding for emergency response, poor linkage between ambulance services and health

facilities as well as the lack of essential emergency services infrastructure.

On the same footing, almost similar findings were noted for Nakuru County.28 Despite of the hype of the

county purchasing ambulances (where the county owns 21 ambulances), majority of them lacked

designated ambulance personnel; were critically under-equipped; lacked even basic and essential

emergency medical supplies; suffered from mechanical defects; were unroadworthy and did not even

meet the requirements to be classified as Basic Life Support ambulances (which is the lowest

classification of ambulances). In addition, 16 out of the 22 ambulance drivers were rarely available for

duty as they multi-tasked between ambulance work and other duties. Moreover, these drivers were not

even trained in the basic level of a first aider and the entire county had only one Emergency Medical

Technician (EMT) attached to an ambulance. At the time of the assessment, one of the ambulances was

in police custody having been involved in a road traffic accident.

Needless to say that both Nairobi and Nakuru Counties are just a microcosm of the dilapidated situation

of emergency care across the other 45 counties.29 Based on their findings, Broccoli et al found that

communities still face barriers to accessing pre-hospital emergency care such as high costs, a poor

emergency system structure, difficulty in obtaining emergency transportation, poor service from health

care personnel, and barriers to accessing initial emergency care at the scene of accident or illness in

different parts of the country.30

28
County Government of Nakuru: Department of Health Services, ‘Ambulance Assessment Technical Report: March 2016’ (2016). (Report
commissioned by the Nakuru County Referral Services and Emergency Response Taskforce).
29
Morgan Broccoli,Emilie Calvello, Alexander Skog, Benjamin Wachira,et al, ‘Perceptions of Emergency Care in Kenyan Communities Lacking
Access to Formalised Emergency Medical Systems: A Qualitative Study’ (2015) 5 BMJ Open. Doi:10.1136/bmjopen-2015-009208). This research
covered sampled areas from all former provinces and districts and thus is a fair representation of the perceptions of emergency care service delivery
in all parts of Kenya.
30
Supra, n29

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Moreover, while the roll out of Universal Health Coverage (UHC) created hopes of better emergency

care at the grassroots through county governments, the adopted implementation framework31 diminishes

such aspirations. This position is based on the premise that the pilot counties for phase one of the UHC

were selected based on the disease burden rather than emergency care and related needs.32 As such, the

UHC road map and implementation plan33 mainly focused on maternal, child and newborn health;

communicable and non-communicable diseases; as well as in patient and out patient services. As such,

milestones in the UHC pilot Counties have been mainly focusing on hospital-based care and related

infrastructural expansion. It was only after public outcry that emergency services were recently added to

the UHC essential services package34 and even then, not much progress has been achieved in relation to

the Pre-hospital Emergency Medical Services System.

Needless to say, therefore, that even under the devolved system of governance that gave prominence to

ambulance services, the PHEMS System still remains to be neglected and sidelined as more emphasis is

placed on hospital based service delivery. Moreover, despite of the initiation of revolutionary health

reforms such as the Universal Health Coverage pillar of the Big 4 Agenda, there is more focus on

diseases and other well established programs such maternal, child and newborn health at the expense of

emergency care needs and the establishment of a strong Pre-hospital Emergency Medical Services

System. This furthers the question on relevance of the PHEMS System in Kenya and whether it is

crucial in realizing the highest attainable standard of health.

31
Government of Kenya: Ministry of Health, ‘Universal Health Coverage Implementation Plan Phase I’ (2018) (Published by the Ministry of Health as
version 2018-11); Government of Kenya: Ministry of Health, ‘Operational guidelines for implementing Universal Health Coverage interventions in
Kenya, 2018–2022’ (2018) (Published by the Ministry of Health as version 2018-11); Government of Kenya: Ministry of Health, ‘Roadmap Towards
Universal Health Coverage in Kenya, 2018–2022’ (2018) (Published by the Ministry of Health as version 2018-11)
32
According to David Kariuki, Head of Policy, Planning and Health Financing at the Ministry of Health, the selection criteria included: ‘Machakos, a
county prone to road traffic accidents, Nyeri due to high prevalence of non-communicable disease such as hypertension, diabetes and cancers. Isiolo,
among the top 15 high maternal mortality counties and representative of mobile population and Kisumu among counties with high prevalence of
communicable diseases such as HIV and malaria.”
See: Winnie Atieno, ‘Govt: This is Why we Chose 4 Counties for Health Coverage’ (Business Daily, 9 October 2018)
<https://www.businessdailyafrica.com/news/counties/Govt--Why-we-chose-4-counties-for-universal-healthcare/4003142-4798464-
1289rtx/index.html> accessed on 17 February 2019; Nancy Agutu, ‘[VIDEO] Universal Health Care: Why Four Counties Were Chosen for Pilot’
(The Star, 13 December 2018) <https://www.the-star.co.ke/news/2018/12/13/video-universal-health-care-why-four-counties-were-chosen-for-
pilot_c1865327> accessed on 17 February 2019
33
Ibid, n31
34
Ministry of Health, ‘President Uhuru Launches Universal Health Coverage Pilot Program’ (Ministry of Health, 13 December 2018)
<http://www.health.go.ke/?p=5116>

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 2.0 LEGAL ANALYSIS OF THE RIGHT TO THE HIGHEST ATTAINABLE STANDARD OF

HEALTH

The fundamental human right to the highest attainable standard of health has been enshrined in various

national and international instruments. At the apex is Article 43 (1) (a) of the Constitution of Kenya,

2010 which unequivocally guarantees that 'every person has the right to the highest attainable standard

of health.' Moreover, this right has been taken up by various statutes such as the Health Act of 2017 and

expounded in various national policies and development plans by the Government of Kenya.35

Internationally, Kenya bound herself to the World Health Organization (WHO) in 1948 whereby the

WHO Constitution obligated State parties to promote and protect the realization of the highest attainable

standard of health.36 Thereafter, the narrative of the highest attainable standard of health was

propounded and supported by subsequent international health related legislation. Such international

instruments include:- Article 25 of the 1948 Universal Declaration of Human Rights (UDHR); Article

12 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR);37 Article 16

of the 1981 African Charter on Human and Peoples' Rights of 1981; Article 14 of the 1990 African

Charter on the Rights and Welfare of the Child38 as well as the 1993 Vienna Declaration and Program of

Action.39

35
Government of Kenya: Ministry of Health, ‘The Kenya Health Policy 2014 - 2030’(Ministry of Health 2014) Ch 1. The commitment of this policy
document is 'Towards attaining the highest standard of health' Republic of Kenya: Ministry of Health, ‘Quality Management System Based on ISO
9001:2008: Quality Policy’ Issued on 18th March 2015. Pg. 2. The Quality Policy Statement of the Kenyan health sector provides that ‘The Ministry of
Health is committed to providing a progressive, responsive, sustainable and quality health care system for accelerated attainment of the highest
standard of health to all Kenyans’; Government of Kenya, ‘Kenya Vision 2030: The Popular Version.’ (National Economic and Social Council 2007)
The right to health is a key component of the Social Pillar of Vision 2030; Government of Kenya: Ministry of Health, ‘The Kenya National Patients’
Rights Charter’, (Government Printer, Nairobi, October, 2013, 1st Ed.) Chapter 1, Article (5)
36
Constitution of the World Health Organization, 1946. Preamble para 3 & 10 (The WHO Constitution was adopted by the International Health
Conference in New York on 22nd June 1946 and entered into force on 7th April 1948 (Official Records of the WHO, Basic Documents, 2006)
37
Article 12 of the ICESCR (as adopted by the United Nations General Assembly Resolution 2200A (XXI)of 16 December 1966) proposed measures
include the creation of conditions which would assure to all medical service and medical attention in the event of sickness.
38
Article 14 of the ACRWC in particular lists the measures that state parties ought to take which include but are not limited to the integration of basic
health services into national development plans.
39
World Conference on Human Rights, ‘Vienna Declaration and Program of Action’ (1993)(A/CONF. 157/23), Paragraph 3 defines the right to the
highest attainable standard of health as a claim to a set of social arrangements, norms, institutions, laws, and an enabling environment that can best
secure its enjoyment. These institutions and arrangements that can secure the greatest enjoyment of the right to health include PHEMS systems.

9|P a g e
The essence of this outstanding commitment at both the international and national planes is that

individuals are no longer just entitled to the right to health but to the highest attainable standard of

health. In this regard, it is my keen observation that what was once a gold standard and a mere aspiration

has now transformed into a legal threshold with obligations being imposed upon States.

However, despite of this strong legal framework and corollary obligations; a practical observation of the

Kenyan health sector shows a highly dilapidated and severely underfunded health sector.40 Moreover,

this poor state of affairs was worsened by the challenges of devolving the Kenyan healthcare system41

contrary to strong evidence for adopting an integrated approach to health systems. As such, these

combination of factors bring more doubt than surety as to whether the Kenyan health sector, as currently

constituted, can guarantee the realization of the aforementioned legal threshold. In this regard, I make a

case for integration of a functional PHEMS System as a cost-effective, efficient and effective system42

of improving access to the highest attainable standard of health.43

3.0 RELEVANCE OF THE PRE-HOSPITAL EMERGENCY MEDICAL SERVICES (PHEMS)

SYSTEM IN THE KENYAN HEALTH SECTOR

3.1. Overview of the contribution of the PHEMS System vis-à-vis the elements of the highest

attainable standard of health

40
Government of Kenya: Ministry of Medical Services and Ministry of Public Health and Sanitation, ‘Strengthening Health Service Delivery’(25
January 2012) (Report of the taskforce constituted to address health sector issues raised by the Kenya Medical Practitioners, Pharmacists and Dentists
Union) (Report on Strengthening Health Service Delivery)
See further , Jeremiah Wakaya, ‘Study: Kenya’s Health Sector Underfunded’ (31 January 31, 2017 )
<http://www.capitalfm.co.ke/news/2017/01/study-kenyas-health-sector-underfunded/> accessed 13 February 2019). These statistics were based on
major part on the 2017 Community Health Scorecard released by the National Taxpayers Association (NTA). It is my keen observation that the
funding allocated to the health sector in 2018 was just 8% as opposed to the 15% pledge under the Abuja Declaration. See; World Health
Organization, ‘The Abuja Declaration: Ten Years On’ (August 2011, Accessed on 13 February 2019, available at
<www.who.int/healthsystems/publications/abuja_declaration/en/>
41
Ibid, n24
42
Manish Shah, ‘The Formation of the Emergency Medical Services System’ (2006) 96 American Journal of Public Health 414
43
Junaid Razzak & Arthur Kellermann, ‘Emergency Medical Care in Developing Countries: Is it Worthwhile?’ (2002) 80 (11) Bulletin of the World
Health Organization, 900; Muhammad Baqir and Kirani Ejaz, ‘Role of Pre-hospital Care and Ambulance Services in Karachi’ (2011) 61 (12) Journal
of Pakistan Medical Association 1167

10 | P a g e
Scott Sasser et al argue, and I agree, that a PHEMS System plays a critical role in a country’s health

sector.44 Moreover, the task force report entitled ‘Strengthening Health Service Delivery’45 not only

portrayed the deplorable state of the Kenyan healthcare system but also proposed the establishment of

the Kenya National Ambulance System as an effective remedy. In this part, I will analyze the relevance

of the PHEMS System in Kenya by relating its contribution to the essential elements of the highest

attainable standard of health. These elements, as the Committee on Economic, Social and Cultural

Rights (CESCR) argues, 46 include availability, acceptability, accessibility and quality.47

3.1.1. Improved accessibility to healthcare and service delivery

Paragraph 12(b) of CESCR General Comment No. 14 requires that, 'health facilities, goods and services

have to be accessible to everyone.' In order to improve the accessibility of essential health services, the

Kenya Health Sector Referral Strategy48 envisions ambulance services as being at the centre of patient

transport to definitive or palliative care facilities; expertise movement by transporting medical

professionals to the areas of need; as well as the provision of other services like referring specimen and

samples for medical purposes.

Secondly, the PHEMS System improves access to healthcare and service delivery by overcoming the

proximity barriers. As generally observed, Kenya is burdened by the perennial challenges of heavy

traffic jam within urban centres and lack of easily accessible health facilities in rural areas49 which

prolong the pre-hospital times. This adversely affects the health outcomes of patients as Sampalais et al

44
Scott Sasser, Mathew Varghese,Arthur Kellermann and Jean-Dominique Lormand, Prehospital Trauma Care Systems (World Health Organization
2005)
45
Report on Strengthening Health Service Delivery. Ibid n40. Page 11
46
Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art.
12)’ (CESCR General Comment No. 14) (Passed on May 11th, 2000 and adopted at the 22nd Session of the Committee on Economic, Social and
Cultural Rights, on 11 August 2000 as contained in Document E/C.12/2000/4.
47
CESCR General Comment No. 14 Para 12
48
Government of Kenya: Ministry of Health, ‘Kenya Health Sector Referral Strategy, 2014 – 2018’ (Ministry of Health 2014) Ch 5; Government of
Kenya: Ministry of Health, ‘Kenya Health Sector Referral Implementation Guidelines, 2014’(Ministry of Health 2014)
49
For instance, only about 40% of Kenyans live within four (4) kilometers of a functioning facility in rural areas and 70% in urban areas. Peter
Nyarango, ‘Universal Health Coverage: Kenya’s Journey to Date’ [2010] Strahmore 11

11 | P a g e
found that an increase in the total pre-hospital time led to a proportional increase in the rates of

mortality and morbidity.50 However, the solution to this problem is provided by the PHEMS System

where the mobile ambulances can traverse and withstand different terrains to respond to remote areas of

distress, facilitate technical extrication (rescue) and initiate a medical retrieval to definitive medical

facilities. In addition, ambulances enjoy the right of way51 and Highway Code exemptions52 which allow

them to penetrate heavy traffic and thus reducing the pre-hospital times.

Indeed the essence of this contribution is supported by the Golden Hour Concept,53 and the further

research of Sampalais et al54 that a decrease in the total pre-hospital time led to a proportional decrease

in the rates of mortality and morbidity. In this regard and while making the case for the PHEMS System,

it was the finding of Macharia et al,55 that, the ‘lack of pre-hospital care and consistent ambulance

response to road accidents are significant contributors to the morbidity and mortality from these

emergencies’.

Thirdly, the PHEMS System promotes timely access to the required emergency medical care in pre-

hospital settings. While making the case for this emergency health care as an essential component of

50
John Samplais et al, ‘Impact of On-site Care, Prehospital Time, and Level of In-hospital Care on Survival in Severely Injured Patients’ (1993) 34 (2)
Journal of Trauma: Injury, Infection, and Critical Care 252
51
Paragraphs 83 and 84 of Traffic Regulations pursuant to the Traffic Act, Cap 403 of the Laws of Kenya gives a right of way and statutory immunity to
emergency vehicles (ambulances, police vehicles and fire engines) when they are in the emergency mode (on lights and sirens)
52
Reuben Githinji, ‘Ambulances Exempted From Traffic Rules - Judge’ (The Star, 28 December, 2017) <www.the-
star.co.ke/news/2017/12/28/ambulances-exempted-from-traffic-rules-judge_c1689956> accessed on 13 February 2019; R v Erick Joseph Njagi
Ndwiga [unreported] of December 2017 at the Senior Resident Magistrates Court in Embu.
See the remarks of Embu Senior Resident Magistrate, Hon. Vincent Nyakundi who on releasing the accused unconditionally stated, 'How can he be
charged with a traffic offence yet ambulances are exempted from traffic rules?'
53
The Golden Hour Concept as propounded by Dr. Adams Cowley in 1973 is a representation of the period when health care practitioners have the
highest impact in the morbidity and mortality of patients. American College of Surgeons, Advanced Trauma Life Support: Student Course Manual (9th
Edition, Hearthside Publishing Services 2012) xxiii-ix
According to Dr. Cowley, patients who reach definitive care facilities within 60 minutes (the Golden Hour) of injury have better chances of survival.
See; Adams R. Cowley, ‘A Total Emergency Medical System for the State of Maryland’ (1975) 45 Maryland State Medical Journal 37; Adams R.
Cowley et al, ‘An economic and proved helicopter program for transporting the emergency critically ill and injured patient in Maryland’ (1973) 13
(12) Journal of Trauma 1029
See also; Tom Blackwell and Joy Kaufman, ‘Response Time Effectiveness: Comparison of Response Time and Survival in an Urban Emergency
Medical Services System’ (2002) 9 Journal of Academic Emergency Medicine 288
54
John Sampalis et al, ‘Trauma Care Regionalization: A Process-Outcome Evaluation.’ (1999) 46 (4) Journal of Trauma: Injury, Infection, and Critical
Care 565
55
William Macharia et al, ‘Severe Road Traffic Injuries in Kenya, Quality of Care and Access’ (2009) 9 (2) African Health Sciences 118; Olive
Kobusingye et al, ‘Emergency Medical Systems in Low-and Middle-Income Countries: Recommendations for Action’ (2005) 83 Bulletin of the
World Health Organization 626
See also; JA Henry and AL Reingold, ‘Prehospital Trauma Systems Reduce Mortality in Developing Countries: A Systems Review and Meta-
analysis’. (2012) 73 Journal of Trauma and Acute Surgery261

12 | P a g e
standard health services, Dr. Susan Musyoka expressed deep concern that lack thereof leads to loss of

lives and the continuous exposure of patients to untrained personnel / good samaritans worsens the

situation in most cases.56 Indeed, majority of the patients in Kenya57 are manhandled into taxis, private

cars, hand-drawn carts, motorbikes and other public means while being taken to hospital.

However, based on their training, PHEMS personnel undertake patient assessment, triage, stabilization

and the provision of front-line emergency medical treatment at the scene of emergency. Moreover, these

personnel further reassess the patients and continue to provide additional life-sustaining medical

interventions while en route to definitive healthcare facilities. This continuum of medical care from the

scene to the hospital ensures that viable patients are handed over for further management and thus

reducing unnecessary deaths. In supporting the essence of this contribution, it was the expert conclusion

of Drs. Baqir and Ejaz, and I concur that, 'without standard pre-hospital care, even people with good

survival possibilities also die at the scene or en route to the hospital.'58

Finally, the PHEMS System in Kenya is a convenient enabler of universal health coverage59 through its

equitable model of service provision. It is my observation that ambulance services transport a wide

range of vulnerable, marginalized and well-off patients equitably to points of definitive and palliative

medical care without discrimination. For example various ambulance service providers like the St. John

Ambulance, the Kenya Red Cross Society and the Medicins Sans Frontiers (MSF) are known to

56
The Resolution of Hon. Dr. Susan Musyoka on the Development and Implementation of a National Curriculum for Emergency Training of Medical
Personnel.’as adopted by The National Assembly of the Republic of Kenya, Eleventh Parliament – Third Session on Thursday, November 12, 2015
and referenced as [NA/L&P/CORR/2015(043)]. The resolution identified the need for a well co-ordinated emergency care system in Kenya; Republic
of Kenya: The National Assembly, ‘Programme of Parliamentary Business: Week Commencing Tuesday, June 30, 2015.’ A resolution under the
motion on the Development and Implementation of a National Curriculum for Emergency Training of Medical Personnel.’ Page 30.
57
See; Benjamin Wachira and Ian Martin, ‘The State of Emergency Care in the Republic of Kenya’ (2011)Vol. 1 African Journal of Emergency
Medicine 160. Doi:10.1016/j.afjem.2011.10.008
58
Muhammad Baqir and Kirani Ejaz, ‘Role of Pre-hospital Care and Ambulance Services in Karachi’ (2011) 61(12) Journal of Pakistan Medical
Association 1167
59
Universal health coverage implies that all people have access without discrimination to promotive, preventive, curative, palliative and rehabilitative
essential health-care services of acceptable quality, without exposing the user to financial hardship and with a special emphasis on the poor,
vulnerable and marginalized segments of the population.United Nations General Assembly, ‘The right of everyone to the enjoyment of the highest
attainable standard of physical and mental health in the implementation of the 2030 Agenda for Sustainable Development.’ (June 21st, 2017). A
resolution passed at the 35th session of the Human Rights Council held from the 6th to 23rd of June 2017 and referenced as A/HRC/35/L.18/Rev.1.
Page 3, Preamble

13 | P a g e
transport patients regardless of their ability to pay.60 This is in line with the provisions of the Kenya

National Patients’ Rights Charter61 and the philosophy of universal health coverage.

3.1.2. Enhanced availability of health care and services

Paragraph 12(a) of CESCR General Comment No. 14 has interpreted the component of ‘availability’ to

mean the provision of functioning public health services, goods, facilities, programs and trained medical

professionals. This interpretation further extends to the 'creation of a system of urgent medical care in

cases of accidents, epidemics and similar health hazards, and the provision of disaster relief and

humanitarian assistance in emergency situations.'62

The relevance of the Kenyan PHEMS System in this aspect can be best demonstrated by the famous

case of Mr. Alex Madaga.63 In October 2015, an accident victim underwent an horrendous ordeal in an

attempt to obtain definitive medical care at five different hospitals including a national referral hospital.

Luckily, the ambulance providers not only provided the required emergency medical care to the accident

victim but also sustained his life for over 18 hours when various hospitals were either unwilling or

incapable of treating him. This scenario portrayed the PHEMS System as a very crucial complement to

the hospital based emergency care system in promoting the availability of healthcare.

Moreover, in a country that is burdened by a frequent occurrence of major emergencies and disasters,

the PHEMS System has been found to be an essential and effective component in disaster preparedness,

response and recovery.64 For instance, ambulances are usually stationed as field hospitals at sites of

60
For instance, street families and patients from low resource settings like Mathare are not charged for ambulance services while well off patients from
high resource settings are charged a small fee depending on the intended distance of travel to the facility of choice. Moreover, patients have the
option of engaging in subscription schemes and contracts with ambulance service providers which assure unlimited ambulance transport with as low
as KES 1,200 per year.
61
The Kenya National Patients’ Rights Charter (1st Ed, Government Printer 2013) Ch 1, Article (2)
62
CESCR General Comment No. 14 Para 16
63
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 13 February
2019; 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 13 February 2019)
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.
64
Christina Catlett, Lee Jenkins and Michael Millin ‘Role of Emergency Medical Services in Disaster Response: Resource Document for the National
Association of EMS Physicians Position Statement’ (2011) 15(3) Journal of Prehospital Emergency Care 420. DOI: 10.3109/10903127.2011.561401;
14 | P a g e
major disasters to avail medical care and PHEMS personnel are usually engaged in the entire disaster

cycle.

3.1.3. Adherence to acceptable standards

As discussed earlier, PHEMS is part and parcel of the conventional medical system. In this regard, it

utilizes allopathic techniques and the PHEMS professionals are bound by a rich body of medical ethics

in discharging their responsibilities.

In addition, PHEMS personnel operate under the medical direction of qualified and licensed medical

practitioners known as medical directors. The medical directors are then charged with the establishment

of standing orders, treatment protocols and regulating the scope of practice to meet the required standard

of care that is acceptable in the medical profession and as appropriate in different set ups. From time to

time, the standing orders and protocols are revised and customized to emerging trends, local resource

settings, gender differences, age considerations among other determinants of health.

Moreover, it is my opinion that the ever increasing demand for PHEMS around the world as 'millions of

patients with simple or complicated conditions or injuries seek pre-hospital care'65 is a clear indication

of the acceptability of these services.

3.1.4. Quality assurance in service delivery

The Committee on Economic, Social and Cultural Rights (CESCR)66 continues to state that in order to

achieve the highest attainable standard of health, 'health facilities, goods and services must also be

Scott Sasser, Mathew Varghese,Arthur Kellermann and Jean-Dominique Lormand, Prehospital Trauma Care Systems (World Health Organization
2005)
65
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
66
Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art.
12)’ (CESCR General Comment No. 14) (Passed on May 11th, 2000 and adopted at the 22nd Session of the Committee on Economic, Social and
Cultural Rights, on 11 August 2000 as contained in Document E/C.12/2000/4.

15 | P a g e
scientifically and medically appropriate and of good quality.'67 On this footing, the PHEMS System has

seen tremendous growth to meet this threshold and in the process of evolution,68 there have been

installed various checks and balances that ensure quality establishment, quality control and continuous

quality improvement.

First and foremost, the practice of pre-hospital emergency care as a component of the conventional

medical system is regulated by an evidence based body of emergency medicine. In addition, PHEMS

practitioners work as appendages of trained, qualified and certified medical practitioners through

mandatory medical oversight. This leverages the guarantees of the use of scientific and medically

appropriate methods to meet patient needs.

Secondly, there are regular curriculum reviews, licensure requirements, continuous medical education

and other continuous quality improvement measures that ensure PHEMS practitioners offer the required

quality of healthcare. Needless to say, these measures have seen the professional development of

PHEMS practitioners from mere ambulance drivers of the 15th Century to highly skilled practitioners

with advanced life support capabilities in the modern times. Consequently, research studies indicate a

continuously increasing quality of care delivered to patients and thus leading to better health

outcomes.69

Moreover, the PHEMS System improves the overall quality and effectiveness of the health sector. In

common practice, lay people do not understand the different tiers of health facilities or their capabilities

in service delivery. More often than not, patients are usually transported to the closest and highest tier

67
CESCR General Comment No. 14 Para 12(d)
68
See the evolution of the PHEMS System from a rudimentary patient transport service to a provider of highly specialized advanced life support
interventions.Mickey Eisenberg, Life in the Balance: Emergency Medicine and the Quest to Reverse Death (Oxford University Press 1997); David
Boyd, ‘The Conceptual Development of EMS Systems in the United States, Part I & 2’ (1982) 11 Journal of Emergency Medical Services 19,26;
Manish Shah, ‘The Formation of the Emergency Medical Services System’ (2006) 96 American Journal of Public Health 414
69
Lori Moore, ‘Measuring Quality and Effectiveness of Prehospital EMS’ (1999) 3(4) Journal of Prehospital Emergency Care 325. Review
10.1080/10903129908958963; Rachael O’Hara, Joanne Coster, Suzanne Mason, Allen Hutchinson and Colin O’Keefe, ‘Quality and Safety of Care
Provided by Emergency Care Practitioners.’ (2012) 29 Emergency Medicine Journal 327 <https://www.researchgate.net/publication/51072909>. DOI:
10.1136/emj.2010.104190.

16 | P a g e
possible of health facilities. As a result the highest tier referral facilities get overwhelmed and

ineffective while the closest but inappropriate receiving facilities are forced to initiate unnecessary inter-

facility patient transfers which not only occasion delays in receiving definitive care but also waste the

available resources.

The solution to this challenge lies in an integrated and strengthened PHEMS System. In this System,

PHEMS personnel are able to triage and make a qualified transport decision for the patients. This

decision is based on either the principle of subsidiarity in health systems70 for minor cases or the

Platinum Ten Minutes Concept71 for critical cases. Therefore, for minor cases, comprehensive medical

care is provided on scene and the patients are discharged immediately or, if need be, they are transported

to the lowest tier of health facilities.72 However, in critical cases, the patients are immediately

transported to the most appropriate higher tier definitive medical facilities.73 The essence of this

contribution to the health sector is that utilizing the PHEMS System will ensure patients receive the

required quality of care at the most appropriate tier of health facilities and thus improving the overall

effectiveness of the health sector.

70
The Principle of Subsidiarity requires that medical treatment should be provided either on scene or at the lowest possible tiers of healthcare and
serious cases should be referred through the chain of the continuum of care if absolutely necessary. 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. United Nations
Development Program and Government of Germany, ‘Decentralization: A Sampling of Definitions’, (UNDP, 9 October
1999)<web.undp.org/evaluation/documents> accessed 13 February 2019. 2, 16, 26. (An evaluation of the UNDP role in decentralization and local
governance)
71
The Platinum Ten Minutes Concept basically means that for critically injured and/or ill patients, the on scene care period should be less than ten (10)
minutes to improve their chances of survival. In this case, the health care providers only provide medical and trauma stabilization then make a rapid
transport decision to the appropriate tier of definitive care facilities.
72
This is usually Tier 1 facilities (community based facilities) or Tier 2 (primary care facilities such as dispensaries and health centres. 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) 20
73
This is usually Tier 3 facilities (county health facilities) or Tier 4 facilities (national referral facilities). Appropriate means taken to facilities offering
the required services e.g. burn centres, stroke centres, spinal injury hospitals, CT Scan centres, established emergency departments etc

17 | P a g e
 4.0 CONCLUSION AND RECOMMENDATIONS FOR PHEMS IN KENYA

4.1. Conclusion

In conclusion, it is my opinion that the relevance of a formal and functional PHEMS System as an

essential component of the Kenyan health sector can neither be gainsaid nor ignored. As such, the

integration and strengthening of our PHEMS System is preeminent in the optimization of the Kenyan

health sector and in our quest for the highest attainable standard of health under a unified health system.

4.2. Recommendations

According to Joseph Sakran et al74 ‘developing an efficient and effective pre-hospital care system must

be one of the top priorities, because the implementation of world-class surgical services in hospitals will

not save lives if the majority of the injured are still dying in the pre-hospital setting, or while being

transported to the hospitals.’ In addition, evidence shows encouraging statistics of deaths prevented,

disability averted and improved health outcomes just by strengthening PHEMS Systems.75

As such and in accordance with the constitutional obligations for the State to take 'legislative, policy and

other measures, including setting of standards to achieve the progressive realisation of the rights

guaranteed in Article 43';76 I hereby make the following recommendations in addition to those that I

have presented elsewhere.77

4.2.1. Establish a strong legislative and regulatory framework on PHEMS

74
Joseph Sakran et al, ‘Care of the Injured Worldwide: Trauma Still the Neglected Disease of Modern Society’ (2012) 20 Scandinavian Journal of
Trauma, Resuscitation and Emergency Medicine 64. Doi:10.1186/1757-7241-20-64
75
Junaid Razzak & Arthur Kellermann, ‘Emergency Medical Care in Developing Countries: Is it Worthwhile?’ (2002) 80 (11) Bulletin of the World
Health Organization 900
76
Article 21 of the Constitution of Kenya, 2010.
77
Brian Beauttah, ‘Fighting for Survival: EMS in Kenya’ (Presentation at 2nd Emergency Care Symposium, Safari Park Hotel, Nairobi 29 June 2018 )
<https://knightsemsblog.files.wordpress.com/2018/10/fighting-for-survival-ems-in-kenya-uploaded.pdf> accessed 13 February 2019; Republic of
Kenya: The Ministry of Health, ‘Connecting the Dots: A Unified EMS System in Kenya’ (Report of the Second National Emergency Medical
Services Symposium, Great Rift Valley Lodge, Naivasha 12 - 14 June 2013) accessed on 13 February 2019

18 | P a g e
The first step towards the recognition, standardization, unification, integration and co-ordination of the

PHEMS System in Kenya is through enactment of the necessary emergency medical care specific

legislation and regulatory frameworks. As such, there is need to analyze the existing legal and policy

frameworks; harmonize, review and revise the applicable legal instruments; formulate new laws and

policies; and disseminate the new regime of legal instruments to govern the PHEMS System.

I propose enactment of the Emergency Medical Care Act to give effect to Article 43 (2) of the

Constitution of Kenya, 2010. This legislation would formally establish a PHEMS System; bind both

public and private facilities; create offences and obligations on emergency medical treatment; create a

joint regulatory council for all professionals and inter-professionals involved with emergency care;

establish an equitable model on emergency medical care and related service delivery in Kenya; among

other provisions.

On policy there should be a national Emergency Medical Care Policy, technical guidelines on PHEMS,

as well as a strategic framework providing for the implementation of the PHEMS System in Kenya. In

addition, county governments should pass policies and legislation on the implementation of the PHEMS

System in their respective counties but in accordance with the national PHEMS System.

4.2.2. Relationship between the national and county governments

As noted above, the growth and development of the Pre-hospital Emergency Medical Services (PHEMS)

System highly depends on the close coordination, collaboration, capacity building, technical assistance

and resource allocation by both levels of government. On the contrary, there are no intergovernmental

mechanisms to realize this purpose and the fact that most counties inherited very weak local governance

and service delivery frameworks78 has adversely affected the development of a PHEMS System.

78
Report of Taskforce on Devolved Government, Ibid n23.

19 | P a g e
Consequently, it was the findings of Dennis Rondinelli that these ‘weak administrative or technical

capacity at local levels may result in services being delivered less efficiently and effectively in some

areas of the country.’79

With a view of strengthening the PHEMS System in the areas with weak structures, I recommend the

application of the principle of transferability of functions and powers as an appropriate remedy. This

principle is enshrined in Article 187 of the Constitution of Kenya, 2010 as read with Articles 186, 189

and 190.80 Pursuant to Article 187 (1), a ‘function or power of government at one level may be

transferred to a government at the other level by agreement between the governments.’ The essence of

this provision is that a county government without adequate resources, technical know-how, or is unable

to perform an assigned function may transfer the function by entering into an agreement with the

national government with regard to a particular function, such as the operation of ambulance services.81

Similarly, the national government through national legislation may on its own initiative, intervene,

assume responsibility for a function assigned to a county government and ensure that such a function is

adequately performed.82 Moreover and apart from providing the mechanism of intervention, the

Constitution further obligates the transferring government to appropriate available resources to support

the performance of the transferred function.83

In order to promote independence and respect for the functional and institutional integrity of the county

government whose functions have been surrendered or taken over, the constitutional responsibility for

the performance of the function or exercise of the relevant power remains with the level of government

79
Dennis Rondinelli, ‘What is Decentralisation? World Bank Institute, Intergovernmental Fiscal Relations & Local Financial Management Program,
Fiscal Decentralisation, Briefing Notes’ (2002) www.worldbank.org/wbi/publicfinance/documents/Topic01_BN1.pdf
80
Constitution of Kenya, 2010.
81
Constitution of Kenya, 2010. Article 187 (1)
82
Constitution of Kenya, 2010. Article 190 (3) & (4)
83
Constitution of Kenya, 2010. Article 187 (2) (a)

20 | P a g e
to which the power is constitutionally assigned.84 In addition, assignment by agreement can be revoked

once the county government is capable while the national government intervention can be terminated so

that the assigned function or power reverts to the county government.85

Based on the systems approach to health, this arrangement of transferring health related functions to the

national government can not only improve the efficiency of the entire health sector86 but also promote

the cooperation envisioned in Article 189 of the Constitution leading to a favourable environment for

the development of the PHEMS System in Kenya.

4.2.3. Development of human resources for the PHEMS System

The Parliament of Kenya should enact an Emergency Medical Technicians (Training, Registration and

Licensing) Act to govern the credentialing and licensure of all levels of EMTs from EMT Basic to EMT

Paramedic. More still, there should be an amendment to the Health Act of 2017 to include EMTs under

Section 6(2) as trained health professionals and their regulatory body under Section 60 thereof. Coupled

with a national training curriculum and an endorsed scheme of service87 for PHEMS personnel, these

propositions will lead to recruitment, development, retention and management of an educated PHEMS

workforce that will meet the needs of the Kenyan population.

It is noteworthy that if a county government does not have control over functionaries and other human

resources for the PHEMS System, this devolved function is doomed to fail and the county government

cannot be held responsible for poor service delivery.88

84
Constitution of Kenya, 2010. Article 187 (2)(b)
85
Constitution of Kenya, 2010. Article 190 (4) (c) & (d)
86
Report of Taskforce on Devolved Government, Ibid n23. Page 123
87
See a proposed Scheme of Service: Brian Beauttah, ‘Proposed Scheme of Service for Emergency Medical Technicians in Kenya’ (Knights Emergency
Medical Services, 3 August 2018) <https://knightsemsblog.files.wordpress.com/2018/10/20180803-proposed-scheme-of-service-for-emts-in-
kenya.pdf> accessed on 13 February 2019. Final draft presented to the Ministry of Health of Kenya on 3 August 2018
88
Report of Taskforce on Devolved Government, Ibid n23. Page 125

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 4.2.4. Establish a practical enforcement mechanism on PHEMS

Strong legal instruments on their own cannot guarantee a functional PHEMS System. In this regard, the

regulatory council should be given enough mandate and facilities to enforce legal frameworks and

regulatory provisions on the PHEMS System. Moreover, the Parliamentary Committee on

Implementation89 should follow up and enforce the realization of various resolutions related to the

PHEMS System. The existing regulatory frameworks in need of enforcement includes the Kenya

Bureau of Standards Guidelines relating to the PHEMS System,90 Kenya Medical and Dental

Practitioners Board orders91 and Parliamentary resolutions92.

4.2.5. Establish a strong institutional framework and provide service delivery infrastructure

It is my opinion that a successful implementation of the PHEMS System will be underpinned by a

strong structural, governance, operational, infrastructural and institutional framework. In this regard, the

government of Kenya can adopt the expert guidelines on the development and improvement of a

PHEMS System as proposed by Scott Sasser et al.93

Among other recommendations, the government through the Public Service Commission and in

conjunction with the Ministry of Health should set up a Directorate of Pre-hospital Emergency Medical

89
The Committee on Implementation was established pursuant to Standing Order No. 209 of the National Assembly to scrutinize, House Resolutions,
adopted Committee Reports, petitions, undertakings by the Government in Parliament on the implementation thereof and operationalisation of
legislation within the minimum stipulated time.
90
See Kenya Bureau of Standards (KEBS) requirements for ground, air and water ambulance requirements; requirements and guidelines for EMS
ambulance operators; guidelines for emergency medical dispatch; the National Fire Protection Authority: Guide for Emergency Medical Services
among others available at <https://webstore.kebs.org/index.php?route=product/search&search=emergency%20medical> accessed 13 February
2019.
91
KMPDB Professional Conduct Committee Case No. 2 of 2016. Jesca Moraa (On behalf of the late Alex Madaga Matini) v Kenyatta National Hospital
& Anor, Available at <www.kelinkenya.org/thematic-area/alex-madaga-ruling> accessed on 13 February 2019). Paragraph 97 and 99 at page 36 and
37. This was the order for named stakeholders to develop and implement regulations and guidelines for the registration, licensing and operation of
ambulance services within a period of 90 days from the 21st day of December, 2016.
92
The Resolution of Hon. Dr. Susan Musyoka on the Development and Implementation of a National Curriculum for Emergency Training of Medical
Personnel.’as adopted by The National Assembly of the Republic of Kenya, Eleventh Parliament – Third Session on Thursday, November 12, 2015
and referenced as [NA/L&P/CORR/2015(043)]. The resolution identified the need for a well co-ordinated emergency care system and binds the
government to develop a curriculum for the training of emergency care personnel; Republic of Kenya: The National Assembly, ‘Programme of
Parliamentary Business: Week Commencing Tuesday, June 30, 2015.’ A resolution under the motion on the Development and Implementation of a
National Curriculum for Emergency Training of Medical Personnel.’ Page 30.
93
Scott Sasser, Mathew Varghese,Arthur Kellermann and Jean-Dominique Lormand, Prehospital Trauma Care Systems (World Health Organization
2005)

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Services at the national level. The Directorate can then be replicated throughout the 47 county

governments.

Moreover, adequate resources and sustainable financing should be allocated to support the institutional

framework and service delivery infrastructure. Such infrastructure included but is not limited to the

availability of at least one ambulance in every constituency of Kenya; an operational and integrated

dispatch centre; adequate emergency medical technologies; a toll free emergency access code; an

integrated health information sharing system; national resource stockpiles; and a quality management

system for service delivery as well as seed funding for operational research into the PHEMS System.

4.2.6. Capacity building and technical assistance on the PHEMS System

Considering that the development effort of the Kenyan PHEMS System has been hindered by ignorance,

the government should offer technical assistance to relevant government agencies and institutions. This

can be done through the development, adoption and dissemination of technical guidelines and strategic

frameworks. Moreover, there should be capacity building of stakeholders from the grassroot level. This

will instill process ownership, promote collaboration as well as enhance coordination and thus

improving the acceptance rate of the PHEMS System.

5.0 BIBLIOGRAPHY

5.1. Books

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

Hearthside Publishing Services 2012)

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Bertalanffy L, General System Theory: Foundations, Development and Applications (George Braziller

Publishing 1968)

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

Oxford University Press 1997)

Mock C, et al, Guidelines for Essential Trauma Care (World Health Organization 2004)

Republic of Kenya: The Presidency, Organization of the Government of the Republic of Kenya

(Government Printer, 2018).

Roemer MI, National Health Systems of the World: The Countries (Volume 1, Oxford University Press

1991)

Sasser S, Varghese M, Kellermann A, Lormand J, Prehospital Trauma Care Systems (World Health

Organization 2005)

5.2. 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)

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