Tag: Medico-Legal

Duty of Care: All clinicians (doctors and nurses and others) owe their clients a duty of care to wit: to diligently provide a care that is appropriate, timely and safe for their patients. Failing to do so is a breach of the law and such breach may amount to negligence. If it leads to harm, such negligence may lead to criminal prosecution by the state.

The Right of Patients: Apart from the code of conduct that regulates the respective professionals which also provides safeguards for patients, consumers of healthcare service are also protected under the National Health Care Act of 2014. I have copied verbatim such, rights and safeguards under sections 23-28 of the National Healthcare Act 2014. Let us call these provisions our own Nigerian “ Patients’ Bill of Rights.”

23. (1) Every health care provider shall give a user relevant information pertaining to his state of health and necessary treatment relating thereto including:-

(a) The user’s health status except in circumstances where there is substantial evidence that the disclosure of the users health status would be contrary to the best interests of the user;

(b) The range of diagnostic procedures and treatment options generally available to the user; (c) the benefits, risks, costs and consequences generally associated with each option; and (d) the user’s right to refuse health services and explain the implications, risks, obligations of such refusal.

(2) The health care provider concerned shall, where possible, inform the user in a language that the user understands and in a manner which takes into account the user’s level of literacy.

24. The Federal Ministry, every State Ministry of Health, every local government Health Authority and every private health care provider shall ensure that appropriate, adequate and comprehensive information is disseminated and displayed at facility level on the health services for which they are responsible, which shall include-

(a) the types of health services available;

(b) the organisation of health services;

(c) operating schedules and timetables of visits;

(d) procedures for laying complaints; and

(e) the rights and duties of users and health care providers.

25. Subject to applicable archiving legislation, the person in charge of a health establishment shall ensure that a health record containing such information as may be prescribed is created and available at that health establishment for every user of health services.
26. (1) All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment is confidential.

Confidentiality

(2) Subject to Section 27, no person may disclose any information contemplated in subsection (1) unless-

(a) the user consents to that disclosure in writing;

(b) a court order or any law requires that disclosure; or

(i) in the case of a minor with the request of a parent or guardian; and (ii) in the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative.

(c) non-disclosure of the information represents a serious threat to public health.

27. A health worker or any health care provider that has access to the health records of a user. may disclose such personal information to any other person, health care provider or health establishment as is necessary for any legitimate purpose within the ordinary course and scope of his or her duties where such access or disclosure is in the interest of the user.

(1) A health care provider may examine a user’s health records for the purposes of: (a) treatment with the authorisation of the user; and

(b) Study, teaching or research with the authorisation of the user, head of the health establishment concerned and the relevant health research ethics committee.

(2) If the study, teaching or research under subsection (l)(b) of this section reflects or obtains no information as to the identity of the user concerned, it is not necessary to obtain the authorisations contemplated in that subsection.

The Rights of Care Providers and Clinicians: Please be aware also that, doctors and nurses are professionals and are human. As a member of society, healthcare institutions and the people working their also have rights and privileges. They are also protected, under the law and their own code of conducts.

Clinical Negligence: A breach of duty in duty of care, breach of confidentiality, assaults, battery, clinical malpractice are all forms of dereliction of duty by the clinician. These failings can be remedied via civil legal process or as the case may be via the criminal justice system notwithstanding the remedy that may be provided by the employer of the doctor and the respective regulatory authorities. However, the ball is in the court of the patients. In Nigeria, such patients may be too poor or ignorant or both to take appropriate action to correct a clinical injury.

Summary: A quality healthcare system is an interaction, checks and balances between providers and consumers. Breaches of the law by clinicians can be reported to their respective regulators and the state justice system in both criminal and civil restitution courts. On the other hand, doctors, physiotherapists, pharmacists and nurses also have rights to self defence, to correct erring patients and to also uphold the dignity of their respective professions while aspiring to provide the very best of care. That said, although apparently unknown to the consumers, the most important regulator of clinicians remain the patients or consumer of their clinical services. Thus, medico-legal pursuit is an integral part of the healthcare system albeit not a persecutor of care providers.

Differences between Criminal Law and Civil Law Criminal Law: In criminal law, the action of the government is represented and conducted by the Ministry of Justice of either the federal or state government. If a crime is committed by an individual, say unintentional death in the hands of a clinician, the government can step in to determine if prosecution is necessary.

The agency of the Ministry (the Police) would have investigated the case and pass the file to the prosecutor in the ministry. The decision on persecution or court appearance rests with the prosecutor (the government). Such criminal case is between the alleged criminal and the government (the state).

Criminal cases are about making a deterrent to others not to commit such crime and a punishment to current alleged criminal for his bad behaviour. The punishment varies from community service, deferred imprisonment, house arrest, imprisonment or whatever punishment the court sees fit.

Civil Law: In civil claim under civil law, the battle is between two individuals either biological individuals or businesses. The government have no role to play but the claim can itself be against any level of the government or their agencies and aggrieved members of the society. Very often, civil claim is about making restitution. The aim of restitution is to place the victim in the position that he or she would have been had the alleged injury never occurred. Court can order under civil claims such restitutions as apologies and monetary rewards or both. The court can order anything it sees fit and even the court can go as far as recommending prosecution of the participants.

In some situations, some cases can both be in the remit of criminal and civil laws. We shall see such a case under clinical negligence.

Clarification of Terms Clinic: Often operating as an out-patient as distinguished from a hospital, a clinic is a place where medical treatment is given to patients.

Clinician: Unlike someone who does laboratory or research work, a clinician is a qualified health professional, such as a physician, psychologist, or nurse, who is directly involved in patient care.

Clinical Practice: Clinical Practice is relating to or based on place and or work done with real patients: It relates to the medical treatment that is given to patients in hospitals, clinics and other health centres.

Hospital: Hospital is an extension of a clinic but with admission facilities for patients (in-patients unlike out patients).

Patient/Client/Service User: Is a person receiving or a person who is registered to receive medical or clinical treatment.

Laboratory and Researchers: Are personnel that works in laboratory and very often do not come in direct contact with or participate in direct management of the patient.

Law of Assault in Nigeria: Section 252 of Criminal Code: “A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without his consent, or with his consent, if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another  without his consent, in such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.”

Assault: The threat or the use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact. The act of putting another person in reasonable fear or apprehension of an immediate battery by means amounting to an attempt or threat to commit a battery.

The act of the defendant must have been such that a reasonable man might fear that violence was about to be applied.

An assault is unlawful, and constitutes an offence unless it is authorised or justified or excused by law.

The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

Salient Features of Clinician-Patient Relationships: I will now discuss some crucial features that all patients should expect from their carer. These features are in fact enshrined in the law that regulates the clinicians. Such regulatory law is called the code of conducts.

Confidentiality: Clinicians (doctors, nurses and so forth) are duty bound to keep secret and private all information that the patient had disclosed to the clinician. Except as may be ordered in and by court of law, such information must not be passed to anyone that is not handling or be part of the caring for the patient.

Consent: Agreement of the care receiver must be sought in all procedures and operations that the patient may engage in. Minors who are between 13-16years may consent for themselves if they understand the procedures and operations in question. Otherwise, guardians and parents are allowed to provide consents.

Failure to obtain consent by a clinician before undertaking a procedure and surgery is deemed an assault.

The Business of Healthcare: Meanwhile, members of the Healthcare Sector as in any other industrialsector within the larger economy are allowed to operate like any other business. This operation can be as asole trader, partnership or as an incorporated body.

They, physicians/clinicians are also allowed to partnerwith others for the orderly and beneficial conduct of their respective and businesses in synergy. Thus,healthcare providers and healthcare professionals operating as a business must also conform to the Company and Allied Matters Act that regulates registered businesses.

Trade Associations: Further, individuals and businesses are allowed under the constitution to form associations or trade associations. This constitutional empowerment is the basis of such associations such as Pharmaceutical Association of Nigeria (PSN) and Nigeria Medical Association (NMA).

Mistakes should not be made and trade or professional associations should not be confused with regulatory authorities which I have mentioned earlier. While regulatory authorities regulate the training, education and practice of each profession, trade associations look after the welfare of their members. Trade associations are pressure groups that can influence decision making at all government levels, and they influence legal enactment that may affect members of the profession, industrial sector, general economyand the entire nation. However, as the law may permit, the professional trade associations such as NMAmay exert influences on MDCN. In fact, NMA is a member of MDCN. Similar arrangement occurs in other healthcare units. In Nigeria, MDCN is an executive agency under the Ministry of Health. This means, the federal government still largely controls the various professionals through its executive agency though subject to the Parliamentary (National Assembly) actions.

This explanation is important so that we can distinguish the respective roles of the government, regulatory bodies and trade associations as well as individual professionals.

The Courts: One area that I have not mentioned is the position of the court. Each professional body has its own investigative and disciplinary body. This body hears complaints from professional members and members of the public in respect of members of the profession and their practice. Citing the MDCN as an example, the Disciplinary Tribunal (DT) of the MDCN has the equivalent status of a High Court.

Thus, the decision of the DT can be appealed to the Appellate Court and then to the Supreme Court of Nigeria.

From the foregoing, it can be seen even at this stage, that medicolegal or clinical negligence is the action of individual clinician (pharmacist, laboratory technologist, medical doctor, dentist, nutritionist, physiotherapist and a nurse) measured against the general laws, sectorial law, and regulatory law and even against the action of their respective trade associations.

Moral, Cultural and Religious Codes: In particular in Nigeria and in general, in African context as in different regions of the world, religion and cultures operate through their respective moral codes to influence clinical decisions. Such influences may have direct effect on medicolegal matters. Let us cite an example. It’s an established religious fact that a deceased Islamic patient, say 34-year old pregnant woman, must be buried as soon as possible often within 24 hours of death. Let us now assume that a medical doctor had mismanaged the said deceased patient. Giving the age of the patient and the pregnancy, it’s obvious that the deceased must be subject to coroner analysis which will entail post-mortem study. Such postmortem study may take a long time to complete than is allowed for by religious codes. The work of a coroner and the pathologist as well as medicolegal personnel are clearly made impossible here. Clearly, any claim against the offending clinician is likely to fail or at best be speculative.

Similarly, let us assume a young king or prominent politician who is also a chief, was poisoned or given an overdose.

Yet, if the codes of disposing the king’s body dictate that he must not be dissected or interfered with upon death, then it’s clearly impossible to find the truth of the true cause of death.