Was the just ended healthcare professionals strike that ground the public healthcare system to a halt a mere strike or a severe leadership crisis in health?
On Tuesday, December 10 2013, just two days before 50th Kenyan Jamhuri Day, all healthcare professional unions went on an unprecedented national strike in the public sector to protest against devolution of the human resources for health and the manner in which the devolution was carried out.
The Centre for Pharmaceutical Excellence (CPE), a healthcare consultancy that promotes appropriate medicines use looked in depth on the real issues behind the crisis and made suggestion on the way forward during and way after the strike is over.
See it in the CPE media statement below:
~ The issues, the options and the way out ~
17 December 2013
Executive Summary
The current healthcare crisis as a result of the strike by healthcare professionals could have been avoided. There has been a general misunderstanding and conflicting interpretation of the provisions of the constitution. There has also been a general lack of leadership, sense of urgency and common sense in the resolution of the healthcare professionals concerns. Now that we are in crisis, the general public needs to understand the underlying issues and the stakeholders who include the national government, the county government and the healthcare professionals themselves need to come together and bring this crisis to an end.
There are several options available for the resolution of this crisis and all are anchored in the law. The easiest and probably the most controversial option is finding a way to convince health workers to work with county governments under the existing arrangements. The second option is maintain the status quo and let the national government retain the health function until that time when all the transitional arrangements are complete. The third option is for national government to recognise health as a shared function between the national and county governments as stipulated in the Article 186 (2) of the constitution and lead the process to develop mutual agreeable governance structures under it. The fourth option is for the county governments to exercise extraordinary leadership and use the provisions of Article 187 of the Constitution; to voluntarily transfer the functions back to the national government for a limited period but still maintain the constitutional responsibility of the function and reserve the right to monitor performance or to withdraw the transfer at any time. The fifth option, which is very similar to the third option, is for both levels of government to use the provisions of Section 118 of the County Governments Act to manage health as a ‘shared service’ in an agreed timeline which is not even restricted to the constitutional transitional period of three years. The sixth option is to recognise all the healthcare providers previously employed by the public service commission to be on secondment as per Section 73 of the County Governments Act for the three year transitional period. The seventh and the final option is for the Parliament to use its constitutional powers, as provided by Article 261 of the Constitution, to extend any transition period by a further one year. Of all these options nothing stops the County Public Service Boards from employing their own healthcare professionals at any time based on their individual needs.
Contrary to what is widely thought, the Transitional Authority has very little role in the resolution this crisis, as much as they played a role in the creation of it. They however need to learn valuable lessons as they carry out the remaining functions to prevent as costly mistakes before their tenure ends. Proper interpretation and implementation of the constitution by the authorities, leadership, communication and effective change management are critical to ending the current crisis and preventing similar ones in future.
FULL TEXT ARTICLE
Introduction
The process of the implementation of the new constitutional dispensation has brought with it many challenges. There has been a considerable gain in bringing (or taking) public governance closer to the people. The County Governments have been formed and there is a new sense of responsibility in the delivery of services to the citizenry and the capacity to provide those services is expanding. And as with all good things, the implementation of the Constitution has resulted in the emergence of unforeseen challenges in the health sector.
The Kenyan public governance processes took a significant shift when the politician cabinet ministers exited the scene and entered the cabinet secretaries at the helm of ministries; the latter group being non-political technocrats sourced from a larger pool of experienced and accomplished professionals from both public and private sector. Within the national ministry of health organisational structure, there are, in addition to the cabinet secretary, the principal secretary, senior administrative secretaries and senior professionals in charge of different directorates, departments and units. This group based in Afya house, together, form the policy makers in the health sector. The constitution requires them to take charge of health policy, run specific national programs and the national referral hospitals; while the county governments deliver health services, including primary healthcare services, in the counties.
What the Constitution says
Chapter Four of the Constitution on the Bill of Rights, which outlines rights and fundamental freedoms, guarantees every person the right to the highest attainable standard of health as one of the basic economic and social rights (see Article 43 of the Constitution). These economic and social rights were even extended to emergency medical treatment; where every person in Kenya has a right of access in any healthcare setting in Kenya, including a private health facility.
The Chapter Eleven of the Constitution brought forth the county governments. It spells out the respective functions and powers of the national and county governments. It allows the national government to take up any function that has not been assigned by the Constitution. The Fourth Schedule of the Constitution has assigned the national and county government specific functions and responsibilities. Health as a function meets the definitions the Article 186 (2) of the Constitution because it has been assigned to both the national and the county governments; and therefore is subject to the concurrent jurisdiction of both levels of government. It is therefore inaccurate, and even unconstitutional, to state that health has been devolved to the county governments; just as it is inaccurate to say it is a national government function. The reality is that the health function has been shared between the national and the county governments. It was expected that the policy makers at the ministry of health were aware of these issues, had a well thought out policy framework, a sound communication strategy and were able to provide leadership in this time of change. The matters of legislations were not an absolute necessity for the smooth hand-over some of the health operations to the counties if all parties knew about it and its timelines in advance. The current ‘health care workers’ strike is, however, evolving to be a manifestation of a leadership crisis at national level of government.
The Issues
So, what then are the issues in the current health crisis that has resulted in all health professionals in the public sector going on strike in defiance and almost unanimously? Is it the constitution? No. Is it the governors, their county executives or the county assemblies? No and a small yes. The governors have been trying to fill in the gaps when the national government failed to provide leadership. The governors, however, faltered when they pushed the national government through their council to transfer the function devolved to them by Schedule Four of the Constitution, some at a faster rate than originally intended. A section of them have further failed to build trust and confidence with health professionals with their utterances and actions in the period just before and during the strike. Is then the health care professionals? Of course not! They are just facing uncertain times and are victims of poor change management. It is even made worse by the common unchecked character of public servants in authority: propagating uncertainties, poor communication, withholding information and acts of intimidation by individuals, some who do not have a direct supervision relationship with the frontline healthcare professionals. To their own disadvantage, some healthcare professionals are perceived by the general public to have also contributed to the propagation of hate in their discussions in the social media. Their lack of restraint in dealing with people they need to work with then seemed to justify the corresponding lack of restraint by some figures in authority.
If it is not all these three mentioned above, then what is it that has caused the biggest health crisis to ever befall Kenya? The answer lies in Afya house. Afya house has propagated the chaos of the past, and the situation has been made worse by the leadership vacuum at its very highest echelons.
The entire crop of the policy makers in the Ministry of Health have been in a deep slumber for a long time. They have for a long time only preoccupied themselves with HR issues and little else; and it is unclear what their role will be going forward. Even the transitional period after the March elections did not wake this sleeping house from its deep slumber. The new head of the ministry, the cabinet secretary, has little more than common mwananchi conceptualisation of a good healthcare system. He is still learning about health and its policies in a period when he is supposed to be transferring functions that were traditionally coordinated by the ministry of health to the counties. He is not able to convince healthcare professionals in his arguments in the direction healthcare is taking. He does not seem to be able to foresee the expected successes of devolution of healthcare and its possible pitfalls. The general attitude of the health ministry under him of going with the flow does not help him connect with the healthcare professionals in such times of uncertainties as these. He believes that the County Governments Act provides adequate framework for the running of healthcare in the counties and that little else is needed. He, and the technocrats who fill the offices of Afya house, are yet to define what health policy is. In the process, this national ministry, has ended up presiding over the biggest confusion that healthcare has ever had in Kenya.
The counties do not have enough guidance and advice from the national ministry of health on how they should organise health services. Without proper healthcare standards and guidelines, the county governments are doing what they deem best. The net effect of this lack of leadership at the ministry level is the rolling out of services by the county governments as if there were no national policies and regulations governing health, in existence. Without the intervention of the healthcare professionals in this regrettable strike, this state of affairs was likely to persist and the national health status was set to decline. It would have been difficult to monitor the attainment of international health goals with the new silos of bureaucracy that would have been inevitably created with devolution.
The Way Out – options to consider
The health sector is too important a field to ignore or isolate any of its stakeholders, including the patients who are the ultimate consumers of healthcare services. We suggest the following options that the stakeholders (especially the ministry of health, the county governments and the healthcare professionals) must then jointly pursue to end the crisis and build a stronger and more responsive health system in the future:
OPTION 1: Convince health professionals to work with county governments under the existing arrangements
This will require a total change of tact on the authorities (national government and the county governments) and magnanimity on the health professionals’ side. The authorities must win the trust and confidence of the healthcare professionals. They must think out of the box and work out the formula in which health professionals are made the drivers of the healthcare both at the management and the service delivery level. In this regard, Machakos County and Kajiado County have been seen to be heading in the right direction. The healthcare professionals may however find this option unacceptable and risky for them, going by the history of MoUs and promises that are not kept in Kenya.
OPTION 2: Allow more time for the transfer of functions to the County Governments
This was a crisis that could have been avoided with proper change management strategy that allows adequate time for the most affected, the healthcare professionals, to understand and support the new system. We therefore suggest that the national government take up its share of the responsibility in health and manage the transition to the services to the counties for a period they will agree with the healthcare professionals, but must be equal or less than the three year period provided in the Constitution. Experts would suggest at least two financial years in the public sector where information flow and exchange is usually poor; to allow the employees time to encounter all possible work and career-related situations. In this period all the HR concerns and uncertainties like pending employee benefits, reporting relationships, promotions, trainings and terminal benefits will usually be addressed. Succession planning, training of interns and recruitment of entry level healthcare professionals will also have been put in place to build the confidence of the current and future employees.
OPTION 3: The national government could recognise health as a shared function of both governments as per the Article 186 (2) of the Constitution
The national government could initiate discussions with the county governments on a premise that health is a shared function and not an exclusive function of the counties. Since health policy is not defined in any way that is publicly accessible to all, both governments can share aspects of human resources for health (the healthcare professionals) as both health policy and health services issues. The national government can then have power of development, distribution and regulation of the health professionals while the county governments manage their day to day HR functions including running their payroll. The payroll of the intern doctors should however continue to be run by the national government to so that they can effectively carry out planning for the human resources for health.
The county governments exercise an extraordinary leadership in this matter as per Article 187 of the Constitution
This article allows the transfer back to the national government the health services function by the county governments by agreement for a limited period of time. The county governments will however still maintain the constitutional responsibility for the performance of the function or exercise of the power shall remain with the government to which it is assigned by the Fourth Schedule. They will have the right to demand for progress reports while the national government is temporarily carrying out the function and the specific. The healthcare professionals HR files will be kept by both the ministry and CPSB for this period and only by CPSB when the transition period lapses.
OPTION 4: National and County Governments to manage Health as a ‘Shared Service’ as per Section 118 of The County Governments Act
This option is very similar to the third option on the national government recognising health as a ‘shared function’. The Constitution recognises a ‘shared function’, while the County Government Act provides for a ‘shared service’. For the sake of this argument we will assume that the two avenues can seen as separate options, unless there is a contrary legal opinion. The county governments may enter into an agreement with the national government, to provide health services as the act allows an agreement to provide or receive any service that each county participating in the agreement is empowered to provide or receive within their own jurisdictions. In this scenario, the healthcare professionals are not involved directly but as interested parties or stakeholders. This provision does not have an imposed timeline but we still recommend it be within three years in the spirit of constitutionalism.
OPTION 5: To place all the healthcare professionals employed by the PSC on Secondment in the transition period as provided for in County Governments Act Section 73.
During this period, it shall be the responsibility of the national government to pay the salaries, remuneration, allowances and other benefits due to the staff seconded to a county government during the transition period. The County Public Service Board (CPSB) then manages these employees until the period of the secondment lapses, where they must then resign from the PSC and join CPSB if they wish to retain their current employment and benefits. The provisions of highly quoted Section 138 of the County Government Act on the arrangements for public servants appointed by the Public Service Commission apply.
OPTION 6: The Parliament could use its constitutional powers to extend the transition period by one year
The Constitution in Article 261 (2) allows the National Assembly by resolution supported by the votes of at least two-thirds of all its members, to extend the period prescribed in respect of any particular matter, including health, by a period not exceeding one year. This power can only be exercised once; and only in exceptional circumstances to be certified by the Speaker of the National Assembly. The Attorney-General, in consultation with the Commission for the Implementation of the Constitution, shall prepare the relevant Bills for tabling before Parliament, as soon as reasonably practicable, to enable Parliament to enact the legislation within the period specified.
Under these provisions, if the Parliament fails to enact any particular legislation within the specified time, any person may petition the High Court on the matter to make declaratory order or transmit an order directing Parliament and the Attorney-General to take steps to ensure that the required legislation is enacted, within the period specified in the order, and to report the progress to the Chief Justice. If Parliament fails to enact legislation in accordance with the high court order, the Chief Justice shall advise the President to dissolve Parliament and the President shall dissolve the Parliament. If Parliament has been dissolved in these circumstances, the new Parliament shall enact the required legislation within the periods specified in the Fifth Schedule beginning with the date of commencement of the term of the new Parliament. If the new Parliament fails to enact legislation in accordance with clause the same Article 261 of the Constitution, they will suffer the same fate as the dissolved parliament. And the cycle will go on and on. We however do not expect this to happen as healthcare is not an issue that a whole parliament could refuse to use its power and sacrifice their selves in the process.
Future directions
The health law would in the long-term fix the current and future challenges in the delivery of health services in the counties. The law could expand the national referral facilities to include those that have traditionally served larger populations and provided specialised services for patients within and beyond the county boundaries. This could then result in defining some of the current level 4 facilities, all level 5 and 6 facilities as national referral and teaching hospitals. This would allow counties to provide primary health and usual care and the national government to concentrate on providing specialised care.
Conclusion
In conclusion, a major solution to all this is for the national government to provide leadership and enhance effective communication from now going forward. The health sector is in dire need of leadership to pull it out of the quagmire it finds itself in. The various stakeholders need to start communicating to resolve this crisis. A spirit of trust and mutual respect by the actors needs to take centre stage. If a good communication strategy existed, the current industrial action and the resultant health crisis could have been prevented. Proper interpretation and implementation of the constitution, leadership, communication and effective change management are critical to ending the current crisis and preventing similar ones in future.
The writers of the article are Directors of the Centre for Pharmaceutical Excellence.
For any correspondences, please call 0722-513770
Or email info@cpe.co.ke; sopanga@cpe.co.ke or tpanga@cpe.co.ke
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