BeyHealth Quarterly Journal (BHQJ) BHQJ 2018: 001:1 (May 2018) - Page 13

MEDICO-LEGAL towards this change are reported in Nigerian was such as to be acceptable by a significant Tribunal is headed by the Chairman of the number of their peers; and the qualifying case Council who is appointed by the President on newspapers throughout the year. The advent of Bolitho v. City and Hackney Health Authority the recommendation of the Minister of Health. of social media has also provided a platform for (1997), have been adopted in Nigerian medical Under the Medical and Dental Practitioners’ many of these cases to become more widely jurisprudence. Act, the Tribunal can impose several penalties discussed. These media typically feature Apart from litigation under tort law and criminal for complaints from patients and relatives followed charges most admonishment/caution to suspension and in by rejoinders from hospitals seeking to ‘clarify’ professions have disciplinary mechanisms that extreme cases, permanent removal of the the circumstances under which patients have experienced harm as a result of treatment under the criminal law, medical negligence, ranging from ensure that members of such professions medical practitioner in question from the adhere to specified standards of conduct. medical register (being ‘struck-off’). This received under their care. Under the Medical and Dental Practitioners’ process offers an alternative path for an More of these cases are beginning to make Act, a Council is established which has the aggrieved patient which ought to be shorter in their way to the courts. In my practice as a power to, amongst other things, provide for the time and in which the doctor is ‘judged’ by a health lawyer, I have observed an increasing standards of conduct of medical and dental panel of their peers. interest in pursuing such cases through the practitioners. However, the aim of this process is to ensure courts. Reports also suggest that the Medical The current Code of Medical Ethics (2008) professional discipline and good medical and Dental Council of Nigeria is receiving an contains the standards expected of medical practice and as such, the patient is not increasing number of reports of medical and dental practitioners in several areas. This awarded any form of material compensation negligence. includes standards for informed consent, through this route. Compensation of this kind Involvement of government agencies like the confidentiality, diagnosis, referrals, etc. It also will only be possible through a civil action in the CPC, with a mandate to promote consumer provides circumstances under which the suit or when ordered by a judge in a criminal protection and patient safety standards, is likely conduct of a doctor or dentist may be charge. to increase redress-seeking amongst the considered an act amounting to infamous In summary therefore, patients who have general population and support overall, for a conduct in a professional sense. suffered harm during treatment can rely on the culture of accountability throughout the health These may include negligent acts such as mechanisms provided by the criminal law, the sector. failure to diagnose properly, failure to refer civil law of torts and code of conduct guiding where necessary, failure to see a patient as professional practice and discipline. These mechanisms follow different procedures with This defect in the Tribunal system effectively opens the door to litigation, in most cases, a more tedious and adversarial process often as their condition requires, incompetence in the assessment of a patient, failure to advise appropriately or proffering the wrong advice, failure to obtain informed consent, medical errors in treatment, etc. The Medical and Dental Practitioners’ Act also provides for the disciplinary process – a two- step process requiring investigation by a duly constituted Investigating Panel and subsequent trial by the Medical and Dental Disciplinary Tribunal. The Tribunal is placed by the Act on the level of a High Court, distinguishing it from other professional disciplinary tribunals of its kind. Appeals arising from the Tribunal, are therefore referred directly to the Court of Appeal. The Issue 1 | MAY 2018 | www.beyhealth.com the possibility of varying outcomes in accordance with pre-defined objectives. Key Challenges Despite the definite move towards change evident in this area, the challenges of limited awareness and a cultural tendency not to seek redress persists on the part of patients in Evolution of Medical Negligence and the Law Despite the longstanding recognition of medical negligence as an effective instrument in Nigerian law, medical negligence law has remained a significantly under-developed area of practice in Nigeria. Few cases have been brought before the courts and the success rates for claimants have been relatively low. Many factors have been responsible for the limited number of cases brought to the attention of the courts – cultural and religious inclinations which cause people to “leave all to God”, delays in obtaining legal remedies through the courts, costs of litigation, limited awareness of patients’ rights and a pervasive culture of “doctor knows best”, are important reasons for the current state of affairs. However, this situation seems on the cusp of changing and several examples pointing general. One of the major challenges faced by this progress is the absence of a credible alternative to litigation. Unfortunately, for several years, the Medical and Dental Council of Nigeria has been limited in its ability to play its role effectively as a regulator. Although the Investigating Panel has recommended several cases for adjudication by the Tribunal, it has not been possible to proceed with these cases due to the fact that a Chairman of Council has not been appointed by the Minister. In consequence, there is currently a backlog of cases, effectively eliminating one of the key accountability options available to patients. There are many advantages to a functioning disciplinary process. The Tribunal is composed of a panel of the medical practitioner’s peers, likely to be in a position to understand the exigencies, complexities, and challenges of the 13