1.0 INTRODUCTION
Globally, the health profession is very vital and indispensable in every nation as ultimately, the health of a nation is largely dependent on the quality, dedication and expertise of her health professionals and personnel. Just as the saying goes, that health is wealth, indeed a wealthy nation is a healthy nation. Based on the foregoing, the importance and existence of vibrant legal and regulatory framework to govern a nation’s health profession cannot be overemphasised. In this regard, this paper identifies the various laws and institutions that regulate the health profession in Nigeria and the United Kingdom as well as appraise the role of some regulatory and disciplinary bodies in the health profession. In conclusion, this paper considers the question whether the Medical and Dental Practitioners Disciplinary Tribunal has the jurisdiction to try allegations of a criminal nature.
2.0 THE LEGAL AND REGULATORY FRAMEWORK OF THE HEALTH PROFESSION (NIGERIA AND U.K.)
In both Nigeria and other jurisdictions, the health profession is regulated by various statutes/laws, regulations and codes. These are enumerated below:
In Nigeria, medical practice is governed by the provisions of:
§ The Medical and Dental Practitioners Act CAP M8, LFN 2004;
§ The Nursing and Midwifery (Registration, etc.) Act 1979;
§ The National Health Act 2014;
§ The Code of Medical Ethics in Nigeria [pursuant to section 1(2)(c) of CAP M8];
§ The Constitution of the Federal Republic of Nigeria 1999 (As Amended);
§ The Medical Oath/Vow;
§ The Compulsory Treatment and Care for Victims of Gunshot Act 2017;
§ The Patients’ Bill of Rights etc.
On the other hand, in the United Kingdom, the health profession is regulated by the following:
§ The General Medical Council (Doctors) Medical Act 1983;
§ The General Dental Council (Dentistry) Act 1984;
§ The Pharmacy Act 1954;
§ The UK Central Council of Nursing, Midwifery and Health (Nurses, Midwives and Health Visitors) Act 1997;
§ The Opticians Act 1989 etc.
See the case of Akintade v. Chairman, Medical and Dental Practitioners Disciplinary Tribunal (2005) 9 NWLR (Pt. 930) 338.
The above laws, regulations and codes constitute the body of law known as medical law which according to Kennedy and Grubb is primarily concerned with the relationship between care professionals on the one hand (especially doctors and also hospitals or healthcare institutions) and patients on the other hand. Additionally, medical law deals with life issues like respect for a person’s body, respect for dignity of humans, issues of negligence, abortion, surrogacy, product liability, donation and transplant of human tissues and fluids; right to life and the right to die; care of dying patients, death and dealing with dead bodies and so on. It is worth noting that some of the above concerns of medical law are already constitutionally enshrined and guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) [‘The Nigerian Constitution’]. For example;
The right to life is provided for in section 33 of the Nigerian Constitution;
The right to dignity of the human person is provided for in section 34 of the Nigerian Constitution; and
The right to freedom from discrimination is provided for in section 42 of the Nigerian Constitution;
2.1 REGULATION OF THE HEALTH PROFESSION
THE NURSING AND MIDWIFERY (REGISTRATION, ETC.) ACT 1979
In Nigeria, the nursing and midwifery profession is regulated by the Nursing and Midwifery (Registration, etc.) Act of 1979 [‘The Act’]. The Act provides for the registration and discipline of nurses and midwives in Nigeria (Sections 8 and 17 of the Act).
THE MEDICAL AND DENTAL PRACTITIONERS ACT, CAP M8, LAWS OF THE FEDERATION OF NIGERIA, 2004.
The above laws, regulations and codes provide rights of patients and those of healthcare providers. They also set the basic minimum standard of care and rules of professional conduct required by all medical/health professionals. For example, the Act (per section 1) establishes the Medical and Dental Council of Nigeria (the Council) and empowers it to determine the standards of knowledge and skills to be attained by persons seeking to become members of the medical or dental profession and also to review these standards from time to time. In this regard, the Council is responsible for the approval of courses, qualifications and the institutions intended for persons who wish to become doctors or dentists in Nigeria (Sections 1(2)(a); 9 and 10 of the Medical and Dental Practitioners Act) [‘The Act’].
Therefore, section 8 of the Act states the qualifications and requirements for full registration as a medical practitioner or a dental surgeon. These requirements are that:
A person has attended a training course approved by the Council;
The course was conducted at an institution so approved by the Council;
A person holds a certificate of experience issued pursuant to section 11 of the Act.
In this regard, the Council is empowered to prepare and maintain a register of medical practitioners in Nigeria (section 6(2) of the Act). To this end, the Council, through its Registrar (who may be a medical practitioner or a dental surgeon appointed by the Council) to prepare and maintain registers of the names, addresses, qualifications and such other particulars of persons who are entitled to practice medicine and dental surgery in Nigeria.
Additionally, there exists rules of professional conduct in the event of a breach of the rights or rules of conduct, the means of seeking redress and procedure for disciplinary action are also set out. In this vein, the Medical and Dental Council of Nigeria has and exercises disciplinary powers over erring medical practitioners or dental surgeons in Nigeria according to section 16 of the Medical and Dental Practitioners Act. The circumstances under which the disciplinary powers of the Council are as follows:
Where a registered practitioner is adjudged by the Disciplinary Tribunal to be guilty of infamous conduct in a professional respect;
Where a registered practitioner is convicted by a law court or tribunal of competent jurisdiction in Nigeria, or
Where a person has been fraudulently registered. [Section 16(1) of the Act].
What Constitutes ‘Infamous Conduct in a Professional Respect’?
Infamous conduct in a professional respect connotes the same meaning as ‘serious professional misconduct’. It is worth noting that the list of circumstances that can constitute infamous conduct or serious professional misconduct cannot be exhaustively set out in a code. Hence the listing of acts that amount to infamous conduct in a professional respect under Rules 26 – 70 of the Code of Medical Ethics in Nigeria. Among such acts includes the failure to comply with any of the Preamble and General Guidelines as contained in Rules 1 – 25 of the Code [section 26 of the Code].
That notwithstanding, the following circumstances can be regarded as serious professional misconduct; these are:
Neglect or disregard of personal responsibilities to patients for their care and treatment;
Abuse of professional privilege or skills;
Personal behaviour which is derogatory to the reputation of the medical profession (drunkenness or drug abuse);
Adultery with a patient; and
Self-promotion, advertising and canvassing.
See Akintade v. Chairman, Medical and Dental Practitioners Disciplinary Tribunal (supra); Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal (2000) FWLR (Pt. 44) 542.
Who Has The Power to Investigate Cases of Professional Misconduct?
Under section 15(3) of the Medical and Dental Practitioners Act and Rule 25 of the Code of Medical Ethics in Nigeria, it is the Medical and Dental Practitioners Investigation Panel (‘the Panel’) that is empowered to conduct preliminary investigation into any allegation of infamous conduct in a professional respect or case where it is alleged that a registered person has misbehaved in his capacity as a medical practitioner or dental surgeon. This power also extends to when a medical practitioner or dental surgeon is the subject of proceedings before the Disciplinary Tribunal. Therefore, once the Panel concludes its investigation and finds that there is substance in the allegation against a practitioner, the matter is remitted to the Medical and Dental Practitioners Disciplinary Tribunal for trial.
During the trial, the affected practitioner is given to opportunity defend his actions and conduct. This is in fulfillment of the requirements of fair hearing which is constitutionally guaranteed.
Who Has the Power to Declare a Professional Conduct ‘Infamous’?
Where it is shown that a medical personnel in the pursuit of his profession has done an act which would reasonably be regarded as disgraceful or dishonorable by his professional brethren of good repute and competence, then it is open to the General Medical Council to state that he is guilty of ‘infamous conduct in a professional respect.’ The question is not merely whether what a medical personnel has done would constitute an infamous act for anybody else to do, but rather, whether it is infamous for a medical person do it. See Allison v. General Council of Medical Education and Registration (1894) 1 QB 750 CA.
In Nigeria, it is the Medical and Dental Practitioners Disciplinary Tribunal (‘the Tribunal’) that has the duty of considering and determining any case referred to it by the Panel and any other case which the Tribunal has cognizance under the Act (section 15(1) of the Medical and Dental Practitioners Act). Upon trial and finding of a practitioner guilty of an infamous conduct in a professional respect as contained in the charge preferred against such practitioner, the Tribunal can (in accordance with Rule 25 of the Code) impose any of the following statutory penalties depending on the gravity of the offence and the attitude of the practitioner before and during the investigation and/or trial:
§ Order the Registrar to strike the person’s name off the relevant register or registers.
§ Suspend the person from practice for a period specified in the directive, not exceeding six months;
§ Admonish the person.
It is important to state the policy considerations underpinning the conduct of professional disciplinary proceedings as captured in Dr. Milam v. Medical and Dental Practitioners Investigation Panel & Anor. (2018) LPELR-45539. In Milam’s case, the Court of Appeal, Lagos Division per Tijjani Abubakar, J.C.A. stated that:
‘The conduct of professional disciplinary proceedings is underpinned by two major policy considerations; the first being to internally regulate its affairs as a profession; and the second being that the purpose of the disciplinary proceedings is not about punishment or retribution, but protection. See NEW SOUTH WALES BAR ASSOCIATION Vs. EVATT (1968) HCA 20; 117 CLR 177, where the High Court of Australia remarked that the power of the tribunal is entirely protective, and notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no punishment involved.’
What Amounts to Professional Misconduct?
The general principle is that when a medical or dental practitioner, in the pursuit of his profession, has conducted himself in such a manner which would be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then he is guilty of infamous conduct in a professional respect. (Rule 25 of the Code of Medical Ethics in Nigeria).
In determining the true nature of a serious professional misconduct, the courts over the years have laid down a two-step test. These are:
Whether the doctor’s conduct falls short by an act or omission of the standard of conduct expected among doctors? If yes, then;
Whether the failure or omission was serious?
See; Doughty v. General Dental Council (1988) AC 104.
3.0 CONCLUSION
This paper has appraised the legal and institutional framework regulating the health profession in both Nigeria and the United Kingdom. From all indications, the health profession is highly regulated from the law, regulatory and control bodies to the Code of Medical Practice which should be the case at all times considering the vital/critical nature of the health sector to any nation. That notwithstanding, a shortcoming has been identified in the rules of professional conduct for medical practitioners as stated in Oknoonkwo’s case (2001). That is the deficiency of the rules in providing a course of action for a medical practitioner to take when a patient under his care denies him informed consent to carry out a medical life saving measure such as blood transfusion. This needs to be addressed.
Also, overtime, the jurisdiction of the Medical and Dental Practitioners Disciplinary Tribunal (the M.D.P.D.T.) to try criminal allegations has been in dispute. That notwithstanding, the Supreme Court in Medical & Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 245; 2 M.J.S.C. 67 at 71 held that the M.D.P.D.T. has no jurisdiction to try a matter involving a medical practitioner which discloses an allegation of a criminal offence against him. Therefore, such criminal mattes should be the purview of the courts. This principle was also stated in Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 ANLR 306 at 320.
Based on the above decisions, it is safe to assert that the Tribunal only has the powers try practitioners for professional misconduct and not for allegations of crime. This is further buttressed by the underpinning policy considerations for the conduct of professional disciplinary proceedings as highlighted in Milam’s case. Therefore, the jurisdiction of the Tribunal is professional misconduct and nothing more.
REFERENCES:
Akintade v. Chairman, Medical and Dental Practitioners Disciplinary Tribunal (2005) 9 NWLR (Pt. 930) 338.
Allison v. General Council of Medical Education and Registration (1894) 1 QB 750 CA.
Denloye v. Medical & Dental Practitioners Disciplinary Committee (1968) 1 ANLR 306 at 320.
Doughty v. General Dental Council (1988) AC 104.
Dr. Milam v. Medical and Dental Practitioners Investigation Panel & Anor. (2018) LPELR-45539.
Kennedy and Grubb, Medical Law (3rd Edn. London: Butterworths, 2000), p 3.
Medical & Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 245; 2 M.J.S.C. 67 at 71 SC.
New South Wales Bar Association vs. Evatt (1968) HCA 20; 117 CLR 177.
Okonkwo v. Medical and Dental Practitioners Disciplinary Tribunal (2000) FWLR (Pt. 44) 542.
The Code of Medical Ethics in Nigeria.
The Constitution of the Federal Republic of Nigeria 1999 (As Amended).
Tony Ukam, The Lawyers Case Diary 2020, Vol. 6.
The Medical and Dental Practitioners Act, CAP M8, Laws of the Federation of Nigeria 2004.
The Nursing and Midwifery (Registration, etc.) Act 1979.