CEHURD v. Mulago National Referral Hospital 212 of 2013
Uganda , High Court of Uganda at Kamapala

CEHURD v. Mulago National Referral Hospital 212 of 2013

DATE 24-01-2017DOWNLOAD LEGAL DECISION

Judges:

Lydia Mugambe

Lydia Mugambe

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Topics:

Maternal Health

WHY IT MATTERS:

The High Court of Uganda in Kampala is one of twelve circuits in Uganda. The High Court, serves as the third Court of record in order of hierarchy of the court system. It has unlimited original jurisdiction allowing high court judges the right to try any case of any value or crime of any magnitude. Cases appealed from the high courts are reviewed by the Court of Appeal. Justices of the Court of Appeal also comprise the Constitutional Court when hearing constitutional matters. The decisions of the Court of Appeal may later be appealed to the Supreme Court.

This decision is important as the Court clearly indicates State’s obligations under national, regional and international law to guarantee rights to health and information as well as rights to be free from cruel, inhuman and degrading treatment.

The decision specifies that the hospital has an obligation to provide free and easy access to information about the couple’s baby and failure to provide such information violates their right to access information under article 41 of the Constitution. Importantly, the Court states that whether the baby was alive or not does not diminish the parent’s entitlement to information.

The decision also outlines the State’s obligations to respect, protect, promote and fulfill the right to health which includes positive obligations to ensure everyone knows their rights and has access to them. The right to health is recognized as the opportunity to enjoy the highest attainable level of health, not simply the absence of disease. The cited obligations also require devoting special attention and resources to women whose circumstances make them vulnerable and those who suffer from multiple forms of inequality. The decision specifies that a woman’s inability to access sufficient antenatal care demonstrates a failure on the part of the State to fulfill its obligations under the right to health. The Court also points to over-burdened hospital staff which led to errors as another example of the failure to comply with obligations under the right to health.

The Court cites international human rights bodies that recognize the right to health contains rights to sexual and reproductive health and that States must ensure individuals have access to justice and a meaningful remedy where the right to sexual and reproductive health is violated. The Court also states that the principles enumerated on remedies regarding sexual and reproductive rights are also applicable generally with respect to the right to health, such as adequate, effective and prompt reparations in the form of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

The Court affirms that the right to be free from torture includes freedom from both mental and physical suffering. It also draws a nexus between violations of the right to health and the right to be free from torture.

The Court also offers monetary reparations as well as mandated systemic changes to the hospital to ensure this hospital enhance respect, movement and safety of babies, dead or alive.


The Court finds a hospital’s negligence resulting in the disappearance of the couple’s baby resulted in psychological torture for the parents and violated their right to health and right to access to information.

In March of 2012, a woman delivered two babies in a hospital. The parents of the children contend the woman gave birth to two live babies while the hospital contends the second baby was not alive at birth. The woman was discharged from the hospital the next day with one baby and the couple later reported the incident to the police. Days later the hospital showed the body of the second baby to the couple but the couple claimed and later proved through DNA evidence that the baby they were shown was not biologically related them. The hospital could not adequately account for the whereabouts of her second baby, confirm when the baby died or why the couple could not see the baby. The parents of the child, along with non-governmental advocacy organization, the Center for Health, Human Rights and Development (CEHURD) sued the attorney general and executive director of the hospital for unlawful disappearance of their baby. The plaintiffs asserted the following five Constitutional violations: (1) Whether the hospital staff violated the rights of the child to know and be cared for by their parents under the Constitution: (2) Whether the staff violated the right to access health information and the right to health of the parents under the Constitution; (3) Whether the staff of the hospital violated the right the parent’s right to family under 31(4) and 31(5); (4) Whether the parents were subjected to cruel, inhuman, degrading treatment and psychological torture contrary to the Constitution, and (5) Whether the parents are entitled to the remedies sought. They asked for 300 million Ugandan Shillings for the loss of their baby.  

The court looks at each of the following five issues in turn (considering issues 1 and 3 together): (1) Whether the hospital staff violated the rights of the child to know and be cared for by their parents under the Constitution; (2) Whether the staff violated the right to access health information and the right to health of the parents under the Constitution; (3) Whether the staff of the hospital violated the right the parent’s right to family under 31(4) and 31(5); (4) Whether the parents were subjected to cruel, inhuman, degrading treatment and psychological torture contrary to the Constitution, and (5) Whether the parents are entitled to the remedies sought. They asked for 300 million Ugandan Shillings for the loss of their baby.

Issues 1: Whether the hospital staff violated the rights of the child to know and be cared for by their parents under the Constitution and Issue 3: Whether the staff of the hospital violated the right the parent’s right to family under 31(4) and 31(5)

In order to resolve issues 1 and 3, the Court first seeks to make a determination of whether or not the second baby was born alive. After considering witness testimony, the Court determines that it cannot be certain that the second baby died while at the hospital and does not find the hospital responsible for the death of the second baby. In making this determination, the Court finds the hospital is not responsible for the violations of the rights asserted in 1 and 3.

Issue 2: Whether the staff violated the right to access health information and the right to health of the parents under the Constitution.

For this issue, the Court decides to separate the right to health from the right to information and discuss the right to health exclusively under Issue 4. Regarding the right to information, the Court finds that the failure of the hospital to give the parents any information by way of a death certificate or additional information regarding their second baby was a violation of their right to access information under article 41 of the Constitution. The Court explains the parents were “entitled to free and easy access to see and know all about their baby” and the fact that the baby may have been dead “does not diminish this entitlement.”

Issue 4: Whether the parents were subjected to cruel, inhuman, degrading treatment and psychological torture contrary to the Constitution

The Court looks at Uganda’s obligations under domestic as well as international law. Citing the Human Right Committee’s General Comment 20 the Court explains prohibition of torture relates “not only to acts that cause physical pain but also acts that cause mental suffering to the victim.” The Court goes on to cite General Comment 14 of the Committee on Economic, Social and Cultural Rights to explain the State’s obligation to ensure freedom to control one’s body and freedom from torture as well as entitlements which include adequate health protection and equal opportunity to enjoy the highest attainable level of health.

    Obligations to respect, protect, promote and fulfill the right to health

The Court delves into the State’s obligation to respect, protect, promote and fulfill the right to health. The Court indicates that respecting the right to health includes a State obligation to refrain from interfering with these rights as well as taking positive measures to ensure that all branches of government and organs of the State do not violate them. Protecting a right includes making sure that individuals are able to exercise their rights and freedoms by “promoting tolerance, raising awareness and even building infrastructures.” The State’s obligation to promote the right is rooted in a duty to adopt measures to enhance people’s awareness of their rights and provide accessible information. This also includes obligation to promoting values and objectives of economic, social and cultural rights in administrative and judicial decision-making. Finally, the Court explain the duty to fulfill requires States to take positive steps to advance the realization of the rights with a specific focus on vulnerable and disadvantaged groups.

    Resources and Progressive Realization

Calling on the Africa Commission’s principles and guidelines on progressive realization, the Court explains the State’s obligation to move towards the full realization of these rights, with immediate obligations such as taking concrete and targeted steps to realize economic, social and cultural rights. The Court noted jurisprudence from the African Commission to affirm that “progressive realization within available resources must not be viewed as an excuse to defeat or deny economic, social and cultural rights like the right to health.”

The Court then review the evidence to determine whether the hospital’s actions failed under its obligation to the parents to guarantee the right to health. The Court found that the body of the baby shown to the parents was not that of their baby and that a member of the hospital staff lost or misplaced the baby and this act violated the duty the hospital owed to the couple.

Drawing a nexus between psychological torture and the right to health, the Court indicates that the couple being unable to carry out burial rituals for their child compounded their pain and subjected them to more psychological torture in violation of their rights to health and freedom from torture. Furthermore, the woman’s inability to access sufficient antenatal care in the earlier stages of her pregnancy, resulting in her not knowing she was pregnant with twins, points to the State’s failure to fulfill its obligations under the right to health.

Finally, the Court points to the over-burdened hospital staff, resulting in labeling errors and limited attention to individual patients, as evidence that they could not competently provide health services to their patients in violation of the States obligation under the right to health.

Issue 5: Whether the parents are entitled to the remedies sought. They asked for 300 million Ugandan Shillings for the loss of their baby

Finally, the Court examines an adequate remedy with respect to individual’s right to have access to justice and a meaningful and effective remedy when their health rights are violated. The Court considered the psychological torture suffered by the parents for the failure of the hospital to provide the body of the baby so that they could bury the baby and have closure. The Court also considered the violation of their right to health and access information. However, the Court does not find that the parents were subjected to cruel, inhuman and degrading treatment or that the hospital violated of the second child’s right to know or be cared for by her parents nor a violation of the right to a family.

The Court finds the requested $300 million Uganda Shillings (roughly 83,000USD) too high and issues instead a lower monetary compensation and various forms of general reparations. In compensation for the failure to provide information regarding the whereabouts of the body, failing to produce the body and ensuing psychological torture, the Court orders the following: (1) the police to conduct a conclusive investigation into the disappearance of the baby, (2) the hospital to hold the mid-wife who handled the baby responsible, (3) the hospital to enhance respect, movement and safety of babies, dead or alive, (4) along with reports written by the Executive Director of the hospital every four months for two years outlining measures it is taking to fulfill this obligation (5) that the advocacy organization CEHURD have access to oversee that the hospital is complying with the court order to improve hospital’s respect, movement and safety of babies (6) the hospital to provide psycho-social care and counseling to the parents, (7) and the right of the court to make further orders regarding implementation and (8) the parents to receive $85mil Shillings (~$23,800 USD) to compensate for psychological torture, violation of their rights to health and access to information resulting from disappearance of their baby at the hospital.

The Court finds the hospital’s negligence resulting in the disappearance of the couple’s baby resulted in violation of the right to be free from torture and violated their rights to health and to access to information.

In compensation for the failure to provide information regarding the whereabouts of the body, failing to produce the body and ensuing psychological torture, the Court orders the following: (1) the police to conduct a conclusive investigation into the disappearance of the baby, (2) the hospital to hold the mid-wife who handled the baby responsible, (3) the hospital to enhance respect, movement and safety of babies, dead or alive, (4) along with reports written by the Executive Director of the hospital every four months for two years outlining measures it is taking to fulfill this obligation (5) that the advocacy organization CEHURD have access to oversee that the hospital is complying with the court order to improve hospital’s respect, movement and safety of babies (6) the hospital to provide psycho-social care and counseling to the parents, (7) and the right of the court to make further orders regarding implementation and (8) the parents to receive $85mil Shillings (~$23,800 USD).

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