From Ethics to Enforceable Rights: The Juridification of Medical Confidentiality in Kenya

This article examines the regulation of medical confidentiality in Kenya and argues that Kenyan jurisprudence has progressively transformed confidentiality from a professional ethical norm into a rights-based legal doctrine grounded in privacy, dignity, autonomy, and informational self-determination. Using a doctrinal legal research methodology, the article analyses the Constitution of Kenya 2010, the Health Act 2017, the Data Protection Act 2019, the HIV and AIDS Prevention and Control Act 2006, professional ethical norms, and a substantial body of Kenyan case law and tribunal decisions on breach of medical confidentiality in healthcare service delivery. It explores the ethical foundations of confidentiality, the regulatory framework governing patient information, the legal tests for breach, and the jurisprudence on patient access to medical records, HIV-related confidentiality, health insurance and claims verification, criminal investigations, posthumous confidentiality, and the legal defences and consequences of breach. It demonstrates that Kenyan courts increasingly recognise that confidentiality extends beyond the doctor-patient encounter to encompass hospitals, insurers, state verification bodies, and other downstream custodians of health data. The article concludes that Kenyan law now adopts a patient-centred and constitutionally structured model of medical confidentiality, in which disclosure is the exception and is only lawful where supported by clear legal authority, necessity, proportionality, and legitimate purpose.