Tag: Case-Study

  • Consumer Protection: Healthcare as case study

    Note: These excerpts culled from the book: “Personal Injury & Clinical Negligence: Consumer Rights & Provider’s Responsibilities” which will be published in this column in the coming weeks was granted with the kind permission of the publisher, Strategic Insight Publishing.  The author of the book is Dr. Joel Akande. The book being sold in Nigeria for N2500, went on sale worldwide on 4 September 2018.

     

    Continue from last week…

    In this week, we conclude the excerpts from the above book. The remaining discussion continues in the book: “Personal Injury & Clinical Negligence: Consumer Rights & Provider’s Responsibilities”

     

    Continuation of a “Contract”

    What makes an agreement a contract?  There are five parts to a contract and we shall go through each of them in turn.

    Offer; Acceptance; Consideration; Intention to create legal relations; Capacity;

     

    Offer:

     

    Whatever business or profession a person or party may be in, they have something to offer or intend to offer purchasers or consumers of the goods of services. Take food vendor for example. A food seller places his/her ware in his/her shop looking for a buyer: This process is an offer. A medical doctor who opens a clinic is surely offering his or her skill to members of the public just as a taxi driver on the road is offering his service to intending rider.  This same explanation applies to a pharmacist, a dentist, a nurse who tells the world that he or she is available and offering to the intending clients his professional skills. The offer is nothing until the rest of the elements of contract kick in. A government, a mechanic, an electrician, etc offers their respective services to potential takers just as manufacturers of goods do.

     

    Acceptance:

     

    A hungry man who walks into the food store and knows that the food is on offer asks to be served. He asks for the price of what is on offer. He goes ahead and takes the food. In addition, a woman who boards a bus clearly has indicated or agreed to abide by the offer that had been made on the commuting. Similarly, a patient walks in to a clinic, asks for the fees charged, and proceeds to  undertake  the treatment or professional services on offer. All of these individuals have accepted the offer that the respective providers have made to the world.

     

    Consideration:

     

    Consideration is the value that is exchanged between the party making the offer (offeror) and the party that accepted the offer (offeree). This value may be money and or any other value defined by the parties to the contract. In other words as they say: nothing goes for nothing. There must be something returned in exchange for what you got.  The value or consideration may be a ride from say Lagos to Ibadan in exchange for helping you clean your house in place of paying N5000 for the job.

    In case of healthcare,  the consideration is usually a monetary exchange between the offeree (patient, service user or client) and offeror (the healthcare practitioner).

    Where there is no consideration, there is in general no contract. In cases of voluntary services as we shall see later, the law of contract still applies even though, clearly, it seems  there is no element of consideration. The consideration in volunteering is the satisfaction that the giver of service receives that he or she is doing some good even to his own hurt (altruism). Sadly, many people in Nigeria expects clinicians to fall into the class of altruism even though the doctors and allied workers have personal and business needs to meet.

    Intention to create legal relations:

    A contract may not be valid without the intention of the parties to enter into the contract. Examples: A person who does not intend to eat in an eatery but was forced to eat cannot reasonably be expected to pay for the food he had no intention of consuming. Similarly, a child under 18years who accompanied his mother on a tour cannot be expected to pay the fare, as the child as we shall see below, had no intention of going on the bus.  This is in fact the basis on which a child, except as in a case law called Gillick doctrine cannot consent for a medical treatment without an adult doing so on his or her behalf. Children cannot enter into a binding contract.

     

    Capacity:

     

    As a rule, a child cannot enter into a contract as we have mentioned. The reasoning behind this is both a matter of responsibility and maturity. Under the law, a child may not have the mental capacity to form a contract.

    A similar principle applies to mentally disabled people, confused persons such as the elderly and very physically ill persons who are unable to understand what is presented to him or her.  This doctrine has a practical application in healthcare. A child under 16 years except as in the case of Gillick, may not consent to treatment and hence cannot enter into a contract. The principle carries greater weight in employment of juveniles. Except as the law may allow, any contractual arrangement with a child that subjects the child to labour is obviously an abuse. We have a lot of such in Nigeria. Yet these children have no room or legitimacy to enforce their rights.

    In this week, we conclude the excerpts from the above book. The remaining discussion continues in the book: “Personal Injury & Clinical Negligence:  Consumer  Rights & Provider’s Responsibilities.” Our appreciation  to Strategic Insight Publishing for permission to use parts of the book on our health pages.

  • Consumer Protection: Healthcare as a case study

    Note: These excerpts culled from the book: “Personal Injury & Clinical Negligence: Consumer Rights & Provider’s Responsibilities” which will be published in this column in the coming weeks was granted with the kind permission of the publisher, Strategic Insight Publishing.  The author of the book is Dr. Joel Akande. The book being sold in Nigeria for N2500, went on sale worldwide on 4 September 2018.

     

    Continue from last week…

    Regulatory Authorities: Based on these legal hierarchies as explained above, individual professional members are allowed to practice their professions and be regulated by their respective regulatory authorities as empowered under their Acts as made by the National Assembly.

    Therefore, a typical clinician (say a medical doctor) is subject to the General Law (Criminal Code/Penal Code, respective Business Laws etc), the Industrial Sectional Law (National Health Act), and specific Professional Law ( such as Medical and Dental Practitioners Act) and finally for doctors, the MDCN acting under Medical and Dental Practitioners Act, enacted the Codes of Conduct for doctors. Similar operation of the law operates in Nursing, Pharmacy, Physiotherapy, Psychology, and Nutrition and for Laboratory Professionals.

    Now, for the reasons already mentioned and again for convenience, the healthcare industry will be used to illustrate issues of personal injury though the underlying principles of duty of care are applicable to an array of human endeavours.  The list of federal agencies and regulators where complaints may be lodged in the event of injury or be joined as co-defendants in litigations are listed at the end of the book.

     

    Law of contract as relates to healthcare

    Healthcare practitioners, like everyone else, are free to enter into a contract (otherwise called agreement) or exit a contract /agreement as the case may be. We encounter contract everywhere we turn either such contract is written down or implied. Contract can both be written in part and implied in part. Example of both written and implied contract is marriage between couples. Drivers on the roads have an implied “contract” to behave and drive carefully and not injure anyone whilst the driver uses the roads. Food sellers have implied contract not to harm consumers by the food that they sell. The government has a written contract (via the constitution and other enacted laws) to treat the citizens right and to defend the nation. Teachers have a contact with schools. Employees have a contract with their employers. We have a social contract with each other in the society to maintain the peace. Contract can be written or spoken or be implied depending on the circumstances that gave rise to such a contact as well as the intention of the parties to the contact.

    The law of contract in the common law jurisdiction, of which Nigeria is an integral part, is essentially a result of the jurisprudence (reasoning) of the judges. However, in some cases as in the United Kingdom, a specific Act of Parliament may exist to address some contract issues. This is the case as in Sales of Goods Act, 1979. (The Sale of Goods Act 1979 has now been replaced by the Consumer Rights Act 2015). Except as may be inferred from a specific legislation, the law of contract that is discussed in this book relates essentially to the Common Law reasoning of the Court.

    It is not my intention to turn the reader of this book into a lawyer overnight. Law of contract is larger and deeper than can be contained in the next few pages. The essential point to be made is that a contract exists between healthcare practitioners and their clients or patients or service users. Contract exists between service or product providers and the consumers of such products or services. Contact exists between manufactures, distributors and final consumers even though the contact may not be visible physically in most occasions: in the least, such contracts are enshrined in general law governing the people.

    A contract is simply by definition, an agreement between the entities or individuals or parties that intend to form the contract with the intention that each party will perform his or her part of the agreement and failing, the court may compel performance or award restitution to an injured party or the victim of failed contract.

    Let us also look at what other thinkers and writers have said of the definition of contract. American Restatement (2nd) of the law of Contract 1978 defines contract as “… a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law in some way recognizes as a duty.”

    Let us take another look at the definition of contract: by Yerokun: “a contract as a promise or set of promises, which the law will enforce. Contract is mainly concerned with relation between persons, which the law will recognize and enforce where one of parties fails to perform his part of the bargain.”

    In the past centuries, many writers and courts placed much emphasis in respect of contract, on the need for a ‘meeting of minds’ or ‘consensus ad idem’ for the creation of contracts. This dependence on actual intention was a manifestation of laissez-faire philosophies and a belief in unencumbered freedom of contract. This particular approach to the making of contracts has now largely been jettisoned, though its effect can still be noticed in certain rules. In general, what matters in modern times is not what meaning a party actually intended to express by his words or conduct, but what meaning a reasonable person in the other contracting party’s position would have assumed him to be conveying. This process is known as ‘objective interpretation’.  This particular “objective interpretation” is very relevant in healthcare when a service user walks into a hospital with say bleeding from the head. Clearly, the patient is already saying loud and clear that he or she wants a treatment for his or her bleeding. Continue next week…

  • Consumer Protection: Healthcare as a Case Study: 1

    n the next couple of weeks, we will deal with consumer protection issues. In so doing, we will use healthcare industry as our example to illustrate key issues concerning consumers of products and services.
    Note: The excerpts culled from the book: “Personal Injury & Clinical Negligence: Consumer Rights & Provider’s Responsibilities” which will be published in this column in the coming weeks was granted with the kind permission of the publisher, Strategic Insight Publishing. The author of the book is Dr. Joel Akande. The book being sold in Nigeria for N2500, went on sale worldwide on 4 September 2018.

    Introduction.
    Fundamentally, this book is about the rights of the consumers of products and services in Nigeria. The right to have the opportunity to consume products and services that are safe and free of harms. This right which is enshrined in law in Nigeria as in many other countries includes a situation which, when harm does occur, the right of the consumer to expect apologies and appropriate restitution when applicable. The legal right of the consumer extends the responsibility of the provider of the good or service to ensure that the consumer is not injured. It’s immaterial where such products and services are originating from in so far as the provider of a good or service has as we shall see later on, a duty to care (formally called duty of care) for the consumer of such products and services. The product or service may be from individual medical doctors, lawyers, accountants or teachers and or from the owners of such enterprises. Such products or services provider, (so long as the provider holds the responsibility of duty of care, may be an agency of the government at any level: be it Federal, State or Local Government. In the end, injuries that are caused will lead to involvement of medical doctors who will care for the injured and treat the injury that is sustained by faulty products and services provided by someone else. Thus, although this book aims at helping the consumer to understand his rights as a consumer, it pinpoints the need for the provider of goods and services to appreciate the imperative of avoiding consequences that involve injury to the consumer, resulting from the use of the product or service. By implication, this book promotes the wellbeing, primarily of the consumer of products and services, and the overall welfare of Nigeria and Nigerians:
    This book has introduced two seemly reinforcing perspectives to the fundamental issues that form the central points of this book, which are personal injury and clinical negligence. These are the legal and the medical perspectives to personal injury and clinical negligence. These separate but related areas of professional endeavour will be discussed separately with the aim that both will be referred to as we go along. Towards the end of the book, they will be combined to form a whole. For emphasis and with the clear intention not to be misread, once again, the principles and practice that are discussed in this book are applicable to all areas of human endeavour where one person holds the responsibility or duty of care for another: be it government at any level, agencies of government, private citizens, registered or unregistered businesses, manufacturers, professionals such as lawyers, physicians, dentists, accountants, mechanical engineers, civil engineers, farmers, parents and so forth. And where such duty is breached and an injury results from the consumption of the product or use of the service, a form or forms of restitution may be demanded or provided without any demand.
    In the clinical negligence that is discussed in this book, clinical issues pertaining to healthcare professionals have been used as a case study on one hand, to illustrate the various principles discussed in the book and in particular, the doctrine of duty of care, and on the other hand, as a matter of convenience. The principles of duty of care, standard of care, resulting injuries and the need for restitutions are all applicable across different sectors though the applicable laws are different to make the said law suitable to the specific industrial sector. That is, the duty of care is the same in civil construction as it is in healthcare sector. The standard of care in accounting is similar to that of military officers though the measure of such standard are different for variety of reasons. Let us now take a look at each of personal injury and clinical negligence in turn. Continue next week…

  • The Human Condition Revisited: A Nigerian Case-Study

    The Human Condition Revisited: A Nigerian Case-Study

    IN a world out of joints, some nations are more disjointed than others. Everywhere you turn, humanity is in sharp retreat. By humanity we do not just mean the physical distinction that separates us from the lower apes and other genetic cousins. We mean our very “human-ness”, that is the set of values and institutions that has propelled the human species from the planet of apes to the plains of modern civilization.

    There is a steady erosion of these values and a sharp regression back to the state of nature where everything is famously short, nasty and brutish. The absence of humane-ness, of compassion and of generosity of spirit means the absence of humanity. Sheer bestiality reigns supreme. There are acts of appalling cruelty and wanton disregard of the sanctity of human life which will make members of the animal kingdom wince in horror. The entire human landscape is foaming with blood.

    It has been said that humankind is not a fallen angel but a rising ape. The ape no longer rises, but is stuck in a self-created cage. When institutions put in place by humankind fail, we are no better than our animal cousins. The de-civilizing of humanity did not begin one day or in one country and with one people for that matter. Reacting to the logic of globalization and very much the same existential pressures in different combinations, the human species is under threat everywhere from its own kind and kindred.

    This past week, the United States of America and North Korea finally squared up to each other in what promises to be a nuclear Armageddon the like of which has not been seen since the Second World War. In a curious and intriguing historical irony, the two protagonists are not dissimilar in bullying temperament and eccentric disposition: one is a jowly scoundrel notorious for whimsical cruelties while the other is a permanently off-message sinister stuntman with a child-like compulsion for outrageous conduct.

    This is what you get when a deadlocked democracy at the end of its tether is confronted by a deranged Stalinist autocracy and fetish cult of personality foisted on an industrious, authority fearing people. This is not a nuclear confrontation between a civilized and urbane John F Kennedy and a shrewd and rationally calculating Nikita Khrushchev such as the world witnessed fifty five years ago. It may well be that the fey and feckless Kim Jong-un will help the American political elite to concentrate their mind.

    Meanwhile elsewhere in the world, it is as dark as it is dire. This past week in Nigeria in a novel dimension to premeditated brutality which may yet sound the death knell for organised worship in the country, a lone gun man sauntered into a church in Ozubulu in Anambra State. By the time he finished spraying, more than a dozen people lay dead while scores crawled about critically wounded and bleeding. It was perhaps the first time in the history of the country that the church suffered collateral damage in a drug-related feud.

    A day after this development, the increasing ritualization of poverty and primitive fetish of money lust which has led to the discovery several horror-forests, monster-caves and other hair-raising catacombs of human cruelty erupted in a tunnel in suburban Lagos where the plaintive cries of a captive woman attracted the attention of passers-by and subsequently the security forces.

    In the ensuing melee and social mayhem, two suspected kidnappers were lynched by the irate crowd while scores were wounded by security forces who opened fire as they were about to be overwhelmed by the swelling mob. A Divisional Police Officer had to be forcibly rescued from the mob and was lucky to have escaped with bruises. As this was being written, the discovery of another ritualist den in Lagos has led to a summary execution of two suspects.

    In the north of the country, the Boko Haram insurgents, in an increasing show of strength and defiance, struck around the Lake Chad Basin. Several fishermen were slaughtered and their corpses neatly stockpiled in their canoes as if they were fish for sale. The Boko Haram insurrection has been going on for almost a decade and despite being technically denuded, its capacity for horrific brutalities remains undiminished.

    Taken together with the wave of violent kidnappings, armed robberies, random killings, assassinations, cultic eliminations and other acts of horrific criminality, these samplers of primitive bloodletting from all parts of the nation tend to suggest that Nigeria is virtually submerged in an ocean of blood; a huge fireball of violence which does not leave any part exempt from the trajectory of thunder. The average citizen appears already inured to violence and daily degradation but it has never been this bad in the history of the nation. Increasingly, everybody is resorting to self-help and self-medication.

    If the worst is truly yet to come, then we may all be dead in the long run. A little over thirty years ago, Dele Giwa noted that Nigerians have been shocked to a state of unshockability. In other words, nothing, not even the worst human catastrophe, can shock Nigerians any more. But it would appear that Dele Giwa spoke too soon. Shortly thereafter, the prose maestro himself was dispatched by a novel and spectacular method of public execution.

    If he had been around in contemporary Nigeria, Dele Giwa, who would have turned seventy this July, would have witnessed the infinite capacity of human beings for elaborate suffering stretched to its elastic limit. The limit that we thought was the limit was not quite the limit. This week, taking a dim view of developments, the OPC, the Yoruba self-determination group, requested that Nigeria should be declared a war zone. Nobody can fault the premise on which the request was based.

    It has been said that although humankind first civilised in Africa, but he has not continued to do so there. Africa is regarded as the lazy laggard of human civilization. Despite the open-ended hostilities in the Middle East and the horrific carnage in Syria, the Stone-Age barbarities of ISIL and the Taleban, it is in Africa that human-made adversities including spiritual sorcery combine with epidemics of dereliction such as AIDS, EBOLA, LASSA fever other pestilential afflictions to produce the worst example of human suffering and biblical miseries.

    Africa is the last surviving hellhole of humanity. But it is in Nigeria where everything seems to come together, in a manner of speaking, and that is human disaster and natural calamity to produce a great tragedy in Technicolor. Given its size, scope and the range of talents available to the nation, it is in Nigeria where the last rites and rituals for Black Civilization will be staged or where the entire race will rise like a phoenix from the ashes of death and destruction. Africa will sink with Nigeria or be saved by it.

    So far, the omens are not encouraging. While some parts of the world, particular the western sphere, are victims of their own success, others, like Africans, are victims of their continuing failure and inability to transform from passive objects of history to its sterling subjects. Those who can neither transform their societies or their countries are condemned to watch the slow-motion superannuation of their cultural values or the physical extinction of their societies.

    Many have fingered the rampaging momentum of globalization as being responsible for much of the global unease and the fatal disruption of the normal and customary channels of conflict resolution and the seamless harmonization of societal values and norms. But you cannot eat your cake and have it. Taking moral and ethical umbrage at globalization is an exercise in futility and a profitless venture.

    While it is true that the smashing together of different cultures and disparate values, the forcible incorporation of the old peripheries into the emergent centres have led to a global convulsion and a clash of civilization within, among and between nations, the obverse of the coin is equally interesting.

    Since the dawn of civilization, the forcible co-option of incompatible cultures and social values, the concussions and collisions of norms and mores, the harsh transplantation of people and the virtual abolition of time and space have led to some of the most stunning scientific advances in human development and a radical restructuring of capitalist categories.

    Yet it is profoundly ironic that despite its momentous contribution to the advancement of western civilization over other competing civilizations, popular resentments against the irruptions of globalization have led to xenophobia and the rise of right wing populism replete with ethnic baiting in the older type western nations such as Britain, France, Holland and even the US. Brexit, the Le Pen phenomenon and Donald Trump are direct manifestations despite heroic counter rallies.

    In Nigeria and other colonial nations created as a consequence of the second wave of globalization and the internationalization of slavery, the collision and lumping together of incompatible nationalities and countervailing cultural values have led to social normlessness, state dysfunctionality and a national gridlock which can only be forcibly prised apart or unlocked by sophisticated political re-engineering.

    Once again, it can be seen why it is the loosely federated and freely coordinated nations constructed with centrifugal tensions in mind that are able to withstand the ravages and negative consequences of globalization better unlike European countries with an iron unitary structure so stiff and rigid that they are not amenable to bending.

    It is modern state architecture versus medieval steel scaffolding. This is why it is the loose baggy wonders of Canada, Australia, Switzerland, Belgium and India as well as the compact Scandinavian miracles, bar some hiccups and the odd tremor, that are exemplars of multiculturalism and peaceful multi-national cohabitation rather than older type master-nations and their colonial progenies.

    As Nigeria roils in an epochal crisis of political, cultural, spiritual and economic values with the centre almost buckling under and the federating units engulfed in anomie and anarchy, it will take a miracle of political, social and psychological engineering to reclaim it and stem further loss of invaluable life. As the preceding catalogue of catastrophes suggests, that miracle will have to come sooner than later either through peaceful democratic reorganization of the nation, biological coup d’etat or consuming revolutionary anarchy leading to a radical revamp of state architecture and its personnel.

    There is no point in quibbling any further. Given the astonishing wastage of human and natural resources, the sharp erosion of hope and faith in the nation, the veneer of modernity and civilization superimposed on primitive savagery, Nigeria has very poor prospects for surviving in one piece.