Addressing Legal Challenges in Palliative Care
Author: Shalom Bright Omondi
Introduction
Palliative care embraces human rights that are already recognized in national laws, international human rights documents, and other consensus statements.
What is Palliative Care?
The World Health Organization has defined it as an approach that improves the quality of life of patients and their families facing the problems associated with life-threatening illnesses, through the prevention and relief of pain and suffering by early means of identification and the assessment of other pain and problems, whether they be spiritual, physical, psychological and spiritual.
Palliative care in essence, provides relief from pain, offers a support system, intends neither to hasten nor postpone death, and also integrates the psychological and spiritual aspects of patient care with rights including a variety such as the right to
1. Pain relief;
2. Family centered care;
3. Access to legal service;
4. Treatment of disease, and to have treatment withdrawn.
While Palliative care has not been expressly mentioned in any overall instruments, it has been applied in various international as well and local instruments in regards to the right to health.
Legal Instruments
Articles 25 of the Universal Declaration of Human Rights and Article 12 of the International Convent on Economic, Social and Cultural Rights all echo the same principle that recognizes everyone to enjoy the highest attainable standard of health. In 2013, Kenya came up with the Kenya National Patients’ Rights Charter and chapter 1 states that every person, patient or client has the right to access health care; Health Care shall include promotive, preventative, curative, reproductive, rehabilitative and palliative care as a common standard for achieving the realization of this rights. Furthermore, locally, in the Kenyan constitution, Article 43 of the Constitution also declares the right to health in regards to economic and social rights. The right to the highest attainable standard of health care would entail sparing patients from unnecessary pain. It also includes ensuring access to pain relief medication.
Challenges in implementation
However, this does not mean that the system itself is not faced with challenges that arise in the attempt to implement the standard and right to health, notably palliative care. In Kenya for instance, some of the legal challenges that citizens face every day in regards to right to health include contravention of laws in regard to:
1. Right to information
2. Right to privacy and confidentiality
3. Equality and freedom from discrimination
4. Freedom of association
5. Right to employment and fair labor practices
Take the illustration of stigmatization of individuals with diseases. It is well known that diseases such as HIV lead the nation in regards to infection rate and there is a stigma that goes with carrying the disease. It is the job of the government to not only spread awareness to reduce discrimination but also to accord protection of privacy in privacy laws in order to prevent unfair treatment from occurring in work places such as the office.In essence, all patients have a right to be treated with respect, and health care workers should not treat patients whoa re living with diseases differently from other patients and there should not be unfair discrimination in the workplace.
Kenya does not recognize palliative care and pain treatment as priorities in health care, have no relevant policies, have never assessed the need for pain treatment or examined how well that need is met and have not examined the barriers to such treatment. Narcotic drug control regulations or enforcement practices impose unnecessary restrictions that limit access to morphine and other opioid pain relievers. They create excessively burdensome procedures for procurement, safekeeping, and prescription of these medications and sometimes discourage health care workers from prescribing narcotic drugs for fear of law enforcement scrutiny.
Medical and nursing school curricula do not include instruction on palliative care and pain treatment, meaning that many health care workers have inaccurate views of morphine and lack the knowledge and skills to treat pain adequately. These failures result in unnecessary suffering for people with moderate to severe pain and their families.The cause for this poor availability of pain reliving drugs usually includes a failure to put in place a function supply and distribution system, absence of government policies to ensure their availability, and extremely strict drug control regulations and the fear of legal sanctions among health care workers.
The government of Kenya itself has no official palliative care policy although it is supportive of palliative care in the country. There are also six established hospices in the country: Nairobi, Meru, Kisumu, Nyeri, Eldoret and Coast (Mombasa). These established hospices are discussed in detail. The chapter also describes the reimbursement and funding for services. The president's emergency plan for AIDS relief (PEPFAR) is then presented. The training programmes offered by Nairobi Hospice are aimed at alleviating the continuing resistance to the use of morphine in Kenya amongst some doctors and nurses.
The difficulties in accessing morphine are being addressed by the national hospice association.
Other Issues that may require legal intervention include: Legal capacity in medical decision making (transferring power of attorneys) Accessing social benefits for orphans and older persons Domestic violence (physical, emotional and psychological) Medical negligence Creating sales agreements Discrimination in work place and health care services
Conclusion
In conclusion, the main purpose of the integration of legal services in palliative care is done in order to help patients with terminal diseases die peacefully and with dignity, to protect the dependents of the Patient, to keep families together in hard times, reduce family disputes and inheritance wrangling and also lobby for a legal and policy framework supportive of palliative care including access to quality pain medication
