The Prospects of advance directives in Kenya - a legal analysis

Abstract

Patient rights can be promoted by equipping individuals with legal tools such as Advance Directives that respect their autonomy and dignity by honouring expressed wishes on their healthcare preferences and future desires while they have the mental capacity to execute such a task. This study seeks to assess the viability of Advance Directives (ADs) and Advanced Care Planning (ACP) laws in the context of Kenya. Through qualitative research, the study takes a doctrinal approach that utilises primary legal sources, academic literature and commentaries in assessing the gaps in the legal framework and its implications. The study further makes a comparative analysis with other jurisdictions such as the United Kingdom and South Africa to facilitate research findings of how their implementation of such directives in their laws has enhanced key concepts such as dignity, patient-autonomy and informed consent. The findings highlight a significant gap in the protection of patients’ health care preferences when incapacitated due to the inadequate legal framework in place as well the impact culture has in the development of a more accommodative framework. The study therefore recommends the establishment of a legal framework that recognises these tools as legally binding as well as one that pushes for proper implementation. In addition, the findings show that the lack of adequate research within Kenya on this topic further emphasising the need for more studies especially within the legal context.