By Abubakar-D.-Sani

INTRODUCTION

The public optimism with which the introduction of a Bill of Rights for patients in Nigerian hospital was received, appears to have been somewhat dampened by the reality that, while the Bill is all very well on paper, its effective implementation or enforcement may be another kettle of fish altogether. This situation is informed by a number of factors, not least of which are the following issues: are the rights enshrined in the Bill justifiable; in other words, can they be enforced by a patient through judicial proceedings? If so, what are the mechanisms available for such enforcement? Is there any ‘to-go’ agency of government responsible for implementing the rights? Is any government agency charged with tracking the Bill? Beyond the Federal level, are the rights enforceable in State government-owned or privately-held medical facilities? We shall attempt some answers anon, but first . . .

What are Patients’ Bill of Rights?

According to Wikipedia, a patients’ Bill of Rights is a list of guarantees for those receiving medical care; it may take the form of a law or a non-binding declaration. Typically, the bill guarantees, inter alia, patient information, fair treatment and authority over medical decisions. In Nigeria, the Bill (which was launched by Vice-President Yemi Osinbanjo, SAN, in 2018) is simply an aggregation of rights that already exist in other instruments, such as the 1999 Constitution, the African Charter, the Child Rights Act, the Consumer Protection Council Act, the Freedom of Information Act, the National Health Act, etc.

Statutory Over-view

It is axiomatic that the focus of the Bill is the guarantee of the right to health. A few words about this right will be appropriate. The World Health Organization (1946) defined the right to health as “the enjoyment of the highest attainable standard of health, that should be available, physically and economically accessible, acceptable by medical ethics standard and of quality to all – regardless of race, religion, political belief, economic or social condition”.

The provisions of Section 17(3)(d) of the 1999 Constitution (though – like other parts of Chapter II of the Constitution – are generally not justiciable) enjoin “the State (to) direct its policy towards ensuring that there are adequate medical and health facilities for all persons”. These are complemented by Article XVI of the African Charter which provide that “every individual shall have the right to enjoy the best attainable state of physical and mental health”, adding, for good measure, that “State parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick” unlike Chapter II of the Constitution, the African Charter is enforceable in our courts: vide the African Charter (Ratification and Enforcement Act, 1981).

Additional enforcement mechanism (in relation to the Charter, and the Fundamental rights to life, dignity of the human person and liberty under Sections 33, 34 and 35 of the Constitution, respectively, which impinge on health care rights) is provided under the Fundamental Rights (Enforcement Procedure) Rules 2009. In MUSTAPHA vs. GOV. OF LAGOS STATE (1987) LPELR 1931, the Supreme Court declared that the fundamental rights provisions (of the Constitution) encompass all mankind and attach to a man because of his humanity. The capacity of the individual to enforce them has been settled in a myriad of cases.

Article XXVI of the Child Rights Act 2005 contains similar provisions, this time, in relation to children – which the Act defines as any person under the age of18. Additionally, Section 1(1)(c) of the National Health Act, 2014, enjoins (all) Governments in Nigeria “to provide the best possible health services”.

The Rights

The rights enshrined in the Nigerian Patients’ Bill are as follows:

1. Access to Information i. Right to relevant information in a language and manner the patient understands including the diagnosis, treatment, other procedures and possible outcomes (this right is also provided for in Article IX of the African Charter which stipulates that “every individual shall have the right to receive information”) ii. To fully participate in implementing the treatment plan and making decisions.

2. Patient-Related Information i. Right to timely access to detailed and accurate medical records and available services (Article IX of the African Charter). ii. Access to records of the identity, skills and credentials of treating professionals and care providers published by the Federal/State Ministry of Health or other relevant authorities.

3. Fee-Related Information Right to transparent billing and full disclosure of any costs, including recommended treatment plans (Article IX of the African Charter).

4. Confidentiality Right to privacy and confidentiality of medical records unless disclosure is vital and in the interest of public health in accordance with prevailing laws (Section 37 of the 1999 Constitution).

5. Quality of Care i. Access to clean, safe and secure healthcare environment. ii. Access to equitable quality care and care-givers, irrespective of disability.

6. Patient’s Dignity i. Right to be treated with respect, regardless of gender, race, religion, ethnicity, allegations of crime, disability or economic circumstances (Section 42 of the 1999 Constitution and Articles IV and V of the African Charter) ii. That prior wishes of the patient or in the absence of same, of the next-of-kin (where legally applicable) are respected to the fullest extent practicable during last offices (at the time of death) including cultural or religious preferences, to the extent consistent with extant laws including Coroners laws.

7. Access to Emergency Care Right to receive urgent, immediate and sufficient intervention and care, in the event of an emergency, prioritizing such needed attention over other factors including cost and payment, as well as law enforcement requirements (Article XVI of the African Charter).

8. Visitation Right to receive visitors including for religious purposes in accordance with prevailing rules and regulations (Articles Xi and XII(i) of the African Charter and Sections 40 and 41 of the Constitution). 9. Patient’s Refusal of Care i. Patients at all times, retain the control of their person and must be informed of their power to decline care, subject to prevailing laws and upon full disclosure of the consequences of such a decision (Section 35 of the Constitution and Article VI of the African Charter).

ii. Patients have the right to consent or decline participation in medical research, experimental procedures or clinical trials in the course of treatment (Section 35 of the Constitution and Article VI of the African Charter).

10. Interruption of Service by Providers i. To be informed about impending interruption or disengagement of services of primary or attending professionals responsible for patient’s care. ii. Methodical and practical transition of treatment for patient’s safety and continuity of care.

11. Complaints: To express dissatisfaction regarding service and/or provider including personnel changes and abuse. (Section 39 of the Constitution).

Apparently for the sake of balance, these rights are complemented in the Bill by a number of patients’ responsibilities as well as those of healthcare providers which are, strictly speaking, outside the scope of this work. Suffice it to say that the assumption is that, as long as the patient “keeps his own part of the bargain” (i.e., observes his responsibilities) on the basis of quid pro quo, he (or she) would be fully entitled to complain about violations of his or her rights under the BoR. So much for precepts; what about the reality, in terms of the mechanism(s), if any, provided for ensuring compliance with the Rights?

Enforcement of the BoR

There are a number of structures and procedures in other laws – not in the BoR itself – which can be beneficial (if not exactly salutary) in terms of seeking redress for violations of the BoR. To start with, medical or health practitioners themselves are bound by a Code of Ethics which manifest in the legal principles dealing with medical negligence. This is defined (Black Law Dictionary) as the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. In the locus classicus of BOLAM vs. FRIERN HOSPITAL MANAGEMENT COMMITTEE, the court held that a doctor will not be liable for medical negligence if he acted in accordance with a practice regarded as proper by a responsible body of medical men, skilled in that particular art. In other words, as noted by Jackson, Etti & Edu (August 2018), he would only be liable if he acts otherwise.

However, a patient may challenge, through a civil suit, sub-par service provided by a health-care facility which constitutes medical negligence, for harm or injury incurred in the course of treatment. Apart from this common law right, the National Health Act (in Part III) also enjoins health-care establishments to provide grievance mechanisms through which patients may express complaints on the quality of services they received at the facility. The Act requires officials of State (such as Ministers, Commissioners of Health or Local Health Authorities) to provide procedures for laying complaints.

The Federal Competition and Conserve Protection Commission Act (FCCPC Act)

Additionally, a patient who is aggrieved by breach of any of the rights under the BoR may challenge it through the mechanisms provided in the FCCPC Act – apart from instituting disciplinary proceedings against a medical practitioner/healthcare provider under the Medical and Dental Practitioners Act. The former provides a general legal mechanism for protecting consumer rights in Nigeria. It was this mandate that informed the FCCPC (formerly CPC) – in conjunction with other healthcare stakeholders – to introduce the PBoR. Under the Act, a patient who perceives that he or she has suffered loss, injury or damage may complain in writing to seek redress through the FCCPC (complaints are typically resolved between 1 and 45 days). There is provision for a tribunal to review the Commission’s decision. Of course, this right is co-terminus with the consumer (patient’s) right to seek redress through civil action for compensation or restitution.

Servicom

Servicom (or Service Compact with Nigerians) is yet another mechanism for protecting patient’s health-care rights. Servicom is a means of promoting effective and efficient service delivery in Government (Federal) Ministries, Departments & Agencies (MDAs) for the purpose of ensuring customer (or patient) satisfaction and to manage the performance-expectation gap between the Government and citizens/other members of the public on issues of service delivery. Launched in 2004, it is conceptualized to fight service failure by ensuring that government organs deliver to the public, the services to which they are entitled. Operating through a network of ministerial units established in all MDAs, Servicom’s impact in the health-care delivery system has been restricted to Government (usually Federal-owned) University Teaching Hospitals. According to a Report (Assessment of Service Compact (Servicom) on Public Service Delivery in selected Federal Teaching Hospitals in Nigeria, 2004 – 2013) available at iprojecting@gmail.com), Servicom’s intervention in two Federal University Teaching Hospitals (the University of Nigeria, Enugu and the Nnamdi Azikiwe University Teaching Hospital, Nnewi) reportedly resulted in an “improvement in the services being delivered by (them) as a (direct) result of (the) study”.

Shortcomings of BoR

As Jackson, Etti and Edu noted, the PBoR “is not a statutory instrument, hence it can only be enforced within the existing legal framework”. Continuing, they observed that the rights listed in the PBoR may (only) be enforced pursuant to the provisions of extant laws which create similar rights and, in some cases, stipulate penalties for breach of patients’ right, empowering the courts, disciplinary tribunals and relevant government agencies to (initiate) action for the enforcement of patients’ rights. Sadly, apart from the general mandate of Servicom and the FCCPC on consumer issues, no government agency is specifically charged with either tracking or implementing the PBoR.

As for the applicability of the Bill to State-owned or private healthcare facilities and providers, the FCCPC Act is clearly aimed at activating the provisions of Section 17(3)(d) of the Constitution, which, as previously noted, enjoins the State to ensure that “there are adequate medical and health facilities for all persons”. This provision is ordinarily non-justiciable but it becomes so, if as provided by Item 60(a) of the Exclusive Legislative List of the Constitution, the National Assembly establishes and regulates “authorities for the Federation or any part thereof to promote and enforce the observance of the Fundamental Objectives and Directives Principles contained in (Section 17, inter alia) of the Constitution. What this means is that there is no constitutional (or any other) bar to ‘stepping – down’ the application of provisions of the FCCPC Act in so far as they are deemed to apply to the rights of patients in State-owned and privately-held medical facilities. In other words, the FCCPC Act applies to the health-care rights of patients across federal, state and private medical facilities.

CONCLUSION

The importance of an effective and enforceable Patients’ Bill of Rights in the health-care delivery system of any nation cannot be over-emphasized. This is because, in the words of Office of the United Nations Commissioner for Human Rights “when the rights to health-care are upheld, access to all other human rights is also enhanced, triggering a cascade of transformative change”

 Written by Abubakar-D.-Sani, e-mail: xl4sure@gmail.com