Should government be obligated to provide health care for its citizens?  Should law play any role in regulating the relationship between a healthcare provider and consumer i.e. between doctor and patient?  If medical research holds the key to life-saving discovery is it inimical for government to seek to regulate its conduct?  The complexity surrounding these and many related issues e.g. the legal consequences of current technological advances in medicine is self-evident.  The fundamental question whether law has any business in things medical can only be answered in the affirmative with the debate being only the extent of such “interference.”

Government is ultimately concerned with the well being of its citizens.  In fact one could go as far as saying that Government exists because citizens exist.  For citizens to exist government must secure their physical, physiological and psychological well-being.  It must then follow that the sole purpose of Government is to ensure healthy living for its citizens!  Indeed a survey of the various branches of the law might reveal a pattern: criminal law says, “thou shalt not maim nor do things that harm your neighbor” in the classical sense of thought.  Contract law on the other hand says, “You must only sell that which will not be detrimental to the other person’s being” i.e. it must be fit for the purpose intended.  And of course tort law allows the court to punish the tortfeasor for any delictual omissions or commissions.  In the ultimate one might be forgiven for proclaiming that all law is for the protection of human health!

This course attempts to unravel the legal issues surrounding the provision of health and health care in Kenya.  It will involve a survey of the legal regime setting the framework for health provision; the regulation of the quality of health care in Kenya; securing access to health care by the various population/social groups through the law; public policy issues relating to the provision of health care; the legal relationship between a provider and consumer of health care services; and other contemporary legal issues such as bioethics.

This is a core course that builds upon the foundational 1st semester course, FLB 104 Tort I. While we tackled general theoretical issues on the law of tort, here we look at the manner in which those foundational principles apply in relation to the various specific torts that have been recognized in the law. We look at specific tort claims in greater detail.