SECTIONS 16(3)(a), 19(4)(a), 33(2)(a) and the notes in the First Schedule of the Health Act, 2017 are discriminatory to nurses and thus unconstitutional, null and void ab initio.
Pharmacists and nurses can now head hospitals after they won a case challenging laws restricting top leadership positions to medical doctors.
High Court judge Weldon Korir declared three sections of the Health Act 2017 unconstitutional and discriminatory.
The judge also invalidated parts of notes in the first schedule of the Healthcare Act, which excluded pharmacists and nurses from taking charge of any of the six levels of the healthcare delivery hierarchy.
According to the judge, it was unfair to limit top jobs in the healthcare system to certain groups of professionals without justification.
He said sections 16, 19 and 33 of the Health Act 2017 isolated and treated groups of healthcare providers differently, yet they all served one goal.
“The limitations in these sections, in my view, are unreasonable as there is no valid reason to treat healthcare providers and healthcare professionals differently yet they all serve in the same healthcare system with the aim of attaining the goals identified in the Health Act, 2017,” ruled Justice Korir.
He added that the drafters of the Health Act failed to recognise the holistic approach in healthcare delivery. He added that affordable and quality healthcare required communal efforts, not divide and rule approach.
“This is evident from the inadequate appreciation of the fact that fulfilling the duty to provide the highest attainable standards of healthcare requires a concerted effort that links concerns on access to healthcare, the cost of accessing these services, and the quality of the services provided by the relevant bodies in the healthcare system,” he continued.
The case was filed by the Pharmaceutical Society of Kenya and Kenya National Union of Nurses.