Emergency Medical Treatment Should Not Wait for Insurance

 A medical emergency is one of those moments when the law becomes very practical. A parent arrives at a hospital with a child struggling to breathe. A boda boda accident victim is brought in bleeding and confused. An elderly person collapses at home and needs urgent stabilisation. In such moments, the first question should not be whether a form has been completed, whether a contribution has reflected, or whether a registration system is showing the right status. The first question should be how to preserve life and prevent serious harm.

Kenya’s Constitution gives this concern a clear legal foundation. Article 43(2) states that a person shall not be denied emergency medical treatment. That wording is direct and practical. It does not describe emergency care as a favour from a hospital, a privilege for people with perfect documents, or a benefit that depends entirely on an insurance portal. It recognises emergency medical treatment as a constitutional protection linked to life, dignity and health.

Recent litigation concerning the Social Health Insurance Act and the wider health reform framework has made this issue even more important. In Aura v Cabinet Secretary, Ministry of Health & 11 others, the High Court considered parts of the Social Health Insurance Act, the Digital Health Act and the Primary Health Care Act. One public concern was that registration, contribution or verification rules might be applied in a way that blocks emergency treatment. The Court’s discussion may be read as a warning that health financing reforms must be administered in a manner consistent with constitutional rights.

The Social Health Insurance Act also created an Emergency, Chronic and Critical Illness Fund. That fund appears designed to respond to precisely the kind of situation where a person faces urgent or serious health needs and cannot be treated as a routine outpatient customer waiting for ordinary processing. A health insurance system can have rules, forms and contribution requirements. That is normal. Yet those rules should not be applied so rigidly that a person in a genuine emergency is left unattended while relatives move from one office to another looking for clearance.

For an everyday person, the distinction between emergency treatment and ordinary treatment matters. Emergency treatment usually refers to urgent care needed to prevent death, serious injury, severe deterioration or lasting harm. It may involve stabilisation before later referral, admission or billing discussions. Ordinary services, by contrast, may still be subject to registration, benefit packages, contribution status and other administrative requirements. That distinction is not always easy at the hospital door, and reasonable people may disagree about borderline cases. Still, where delay may place life or health at risk, the constitutional starting point should favour immediate care.

A family member who is told that treatment cannot begin because SHA or SHIF details are incomplete should ask calm but firm questions. Is the patient being assessed as an emergency case? Has a clinician examined the patient? Who has made the decision not to treat or not to stabilise? Can the facility record the reason for refusal, the time and the name or office of the person responsible? These questions are not meant to create conflict with health workers, many of whom work under difficult conditions. They are meant to create a record where a serious rights issue may be arising.

It is also important to escalate quickly. Hospital administration, the county health office, Social Health Authority complaint channels and legal aid providers may need to be contacted, especially where a person is turned away in circumstances that appear urgent. In some cases, the most useful evidence may be simple: the time of arrival, the symptoms, the names of staff spoken to, receipts, referral notes, messages sent to relatives and any written reason given by the facility. When people are frightened, such details are easy to forget. Writing them down as soon as possible can make a later complaint more credible.

There is a fair criticism to acknowledge. Hospitals and public authorities cannot run health systems without administration and financing. Facilities need records, payment mechanisms, accountability and fraud controls. A system with no rules can also fail patients. But emergency care is the wrong place for bureaucracy to dominate the first response. The law appears to require a more humane order of priorities: stabilise the patient first, then deal with documentation, payment questions and administrative follow up in a lawful way.

The key message is that health insurance rules matter, but they should not be used to deny urgent emergency treatment. Where a person’s life or health is at immediate risk, the Constitution places life, dignity and immediate care at the centre. Anyone denied emergency treatment should seek help quickly, preserve evidence and avoid assuming that a computer status or missing registration automatically overrides a constitutional right.

Source note and disclaimer. This article is based on Aura v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (Interested Parties) [2024] KEHC 8436 (KLR), High Court at Nairobi, 12 July 2024; Cabinet Secretary, Ministry of Health v Aura & 13 others [2024] KECA 1195 (KLR), Court of Appeal, 20 September 2024; Article 43(2) of the Constitution of Kenya; and the Social Health Insurance Act, 2023. It is prepared for public legal awareness and is not legal advice for a specific case.

Suggested citation

Ronald Serwanga, “Emergency Medical Treatment Should Not Wait for Insurance” East Africa Legal Insight (10 May 2026).