Michael Kama Bielonwu
The ordeal, humiliation, and dehumanizing treatments that patients go through at the hands of caregivers, particularly Doctors, and Nurses in our hospitals are unethical, unlawful, as they are unacceptable. Health/Patient Rights Violations, Medical Negligence, and Medical Malpractices are cankerworms that have eaten deep into the fabric of our healthcare service delivery system, resulting in avoidable deaths or irreversible damage to some vital organs in the patient’s body. Yet, this menace continues on an incremental scale due to a lack of information and acute ignorance of the patients and the society in general regarding their health rights.
The right to life enshrined in Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria finds expression in right to good and affordable healthcare. Therefore, making the right to good and affordable healthcare an economic, social, and cultural right of all Nigerians. Also, the concept of the right to health has been enumerated in international treaties such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the Convention on the Rights of Persons with Disabilities.
The Universal Declaration of Human Rights provides that: “Everyone has the right to a standard of living adequate for the health and well-being of himself and his family including food, clothing and medical care.”
WHAT IS THE PATIENT BILL OF RIGHTS (PBOR)?
The Patient’s Bill of Rights (PBoR) was launched in Nigeria in 2018 with the aim of improving health service delivery to Nigerians.
PBoR is an aggregation of patients’ rights that exist in other instruments including the 1999 Constitution, Consumer Protection Act (now Federal Competition and Consumer Protection Act, 2018), Child Rights Act, Freedom of Information Act, National Health Act, and other sundry regulations.
PBoR was developed by the Consumer Protection Council (now Federal Competition and Consumer Protection Commission) and other stakeholders
including the Federal Ministry of Health for the protection of consumers.
The World Health Organisation (WHO) in 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 standards and of quality to all; regardless of race, religion, political belief, economic or social condition.”
The subject of rights in healthcare are relevant today as they align with the global movement towards Universal Health Coverage (UHC). The UHC requires that health services are available for all.
A former High Commissioner for Human Rights, Mary Robinson, explained that “the right to health does not mean the right to be healthy, nor does it mean those poor governments must put in place expensive health services for which they have no resources. But it does require governments and public authorities to put in place policies and action plans, which will lead to available and accessible health care for all in the shortest possible time.”
The right to health consists of freedoms and entitlements. Freedoms to control bodily integrity and the right to be free from non-consensual medical treatment and experiments. Entitlement to the right to a system of health protection, preventive measures, treatments and control of diseases and access to essential medicine.
According to the WHO, “Understanding health as a human right creates a legal obligation on states to ensure access to timely, acceptable, and affordable health care of appropriate quality as well as to providing for the underlying determinants of health, such as safe and potable water, sanitation, food, housing, health-related information and education, and gender equality.”
This is also important as rights to health are prerequisites for other rights. The Office of the United Nations High Commissioner for Human Rights (OHCHR) states that “When the rights to health are upheld, their access to all other human rights is also enhanced, triggering a cascade of transformative change”.
The Right to Health is enshrined in the Patients’ Bill of Rights as well as in the National Health Act of 2014 and in the Constitution of Nigeria. Chapter II of the Constitution in Section 17 (3) (d) which lists the Objective and Directive Principles of State Policy, noted that the State shall direct its policy towards ensuring that “there are adequate medical and health facilities for all persons.”
This is also recognized in Chapter IV, which lists fundamental rights. Section 33 and Section 34 reference the right to life and dignity, respectively.
Indeed, being unhealthy comes at the expense of these fundamental rights including the right to life. Human rights cannot be actively exercised without health and indeed health cannot be attainable without dignity which is upheld by all other human rights. In this regard, the Nigerian National Health Act 2014 in Part 1 (1) (c) states that governments have to “provide the best possible health services.”
PATIENT’S RIGHTS AND RESPONSIBILITIES AND PROVIDERS’ RESPONSIBILITIES
The Rights of patients as provided by the Patient Bill of Rights are;
1. The right to access all relevant information on treatment
2. The right to access patient’s cards and provider’s qualifications
3. The right to full disclosure of all the costs of treatment
4. The right to the confidentiality of all medical records
5. The right to good quality care
6. The right to access respect and dignity of care from the care providers
7. The right to access Emergency care
8. The right to visitation according to the provider’s rules and regulations.
9. The right to refusal of care.
10. The right to Information on interruption or disengagement of health care services.
11. The right to express dissatisfaction with the mode of treatment
12. The right to Respect and dignity of care from the care provider.
The responsibilities of patients according to the patient bill of rights are;
1. Seeking information on provider’s Health care services.
2. Asking for qualification of Health care provider and the scope of the health care services to be provided
3. Prompt payment of all bills incurred
4. Truthful and accurate disclosure of medical history
5. Ability to give full explanation during treatment
6. Respecting the right of other patients
7. Recognizing that emergency treatment is not free
8. Respecting the operational role of the service provider for the safety and security of all
9. Compliance with the rules and regulations of the facility.
10. In the case of interruption of health care services, inquire for a suitable alternative.
11. Provision of sufficient details when there is a complaint
The Responsibilities of Health Providers are;
1. Provide information on treatment in areas such as services, treatment, records, etc.
2. Conspicuously display the scope of practice and all available services.
3. Provide immediate and sufficient attention in an emergency.
4. Respect and maintain the confidentiality of patients’ records.
5. Maintain records of the provider’s current certificate and license to practice
6. Treat Patients with dignity irrespective of their status.
7. Give immediate treatment in case of emergency.
8. Inform patients and relatives of visitation rules and regulations.
9. Accept the right of the patient to refuse care.
10. Reschedule patient care in the event of an interruption of services
11. Encourage the patient to ask questions.
Medical negligence is rooted in the general concept of negligence, where the court holds a person responsible for failure to exercise a duty of care in his/her dealings with another, which then results in some form of injury. In a much simpler term, medical negligence would be said to have occurred when medical care providers fail to fulfill their professional obligations.⁴
E. Okoji put it succinctly as thus:
“The failure, on the part of a medical practitioner to exercise reasonable degree of skill and care in the treatment of a patient.”⁵
In other words, if a doctor administers medical treatment to a patient in a negligent manner and causes him harm, the patient can bring an action on negligence against the doctor or medical service provider, claiming damages for the harm (injury) suffered.
When the Liability of Medical Negligence Can Arise.
Generally, for an action in negligence to be grounded, there must first be a duty of care owed the patient and it must be shown that the duty of care was breached by the medical service provider or personnel and that breach caused the plaintiff injury or damage.⁶
According to Okoji, plaintiff must prove the following three conditions in order to succeed in an action of negligence against a doctor:
(a) That the doctor owed the patient a duty to use reasonable care in treating him or her.
(b) That the doctor failed to exercise such care, that is he was in breach of that duty.
(c) That the patient suffered damage(s) as a result of the breach.⁷
Having considered the above, the first question now becomes when can this duty of care be said to have been activated. The answer to this question is simple, once a doctor undertakes to treat a patient, whether or not there is an agreement, a duty of care arises. The doctor therefore must exercise reasonable care and skill in treating the patient; it is immaterial that he is rendering such a service exgratia. For a medical facility, this duty arises immediately a patient is admitted into the facility and is profiled as a patient and attended to by any medical personnel.
Having established when this reasonable duty of care exists, the question now becomes when will this duty be said to have been breached so as to amount to medical negligence? This question was answered by the Nigerian Supreme Court in the case of OJO V. GHANARO where it was held that the duty owed a patient would be breached when the medical service provider/personnel takes steps that any reasonable colleague would classify a grave mistake, as not every misjudgment amounts to negligence.
Examples of Medical Negligence
There are several instances of medical negligence, Forbes listed some of those examples to including the following:
1. Failure to perform or order appropriate medical testing
2. Failure to adequately monitor a patient
3. Anesthesia mistakes
4. Improper administration of medication
5. Improper prescribing of medication
6. Failure to obtain informed consent
7. Improper use of medical devices
8. Incorrect treatment
9. Botched surgical procedures
10. Leaving a surgical instrument inside of a patient.
11. Divulging confidential information.
EXCEPTIONS TO MEDICAL NEGLIGENCE
As already pointed out, not every misjudgment by a medical service provider would amount to negligence. The exceptions to liability for medical negligence are often primarily seen in some of the following instances.
1. When reasonable care was taken in the management of the wellbeing of the patient.
2. Once a medical officer applies a drug to a patient in accordance with his professional knowledge and skill, the resultant effect of such application of
drugs cannot be attributed to negligence on the part of the medical officer.⁸
3. Where the patient contributed to the negligence by withholding necessary information to aid proper diagnosis/treatments.
ENFORCEMENT OF THE BILL OF RIGHTS IN NIGERIA.
The question at this point is, how do individuals enforce their rights under the Patients’ Bill of Rights? Begging the answer to the question of whether there is a special rule of court, specifically for enforcing this right. The answer is no, there are no such rules made specifically for enforcing these rights.
However, even though there are no rules of court specifically made for approaching the courts for the enforcement of these rights, it is instructive to note that since the Patients’ bill of rights draws from rights provided for under various legislations that guarantee fundamental human rights, in the form of safeguards for the protection of human rights under chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria, the provisions of the Child Rights Act, Freedom of Information Act, National Health Act, the Consumer Protection Act now Federal Competition and Consumer Protection Act and the Hippocratic Oath , an individual can enforce his or her right as a patient in an health care facility, by enforcing their rights under
those legislations earlier mentioned.
For instance, under Chapter 4 of the 1999 Constitution of the Federal Republic of Nigeria, an individual may institute using the Human Rights (Enforcement Procedure) Rules, specifically made for the enforcement of individual right provided under Chapter 4 of the Constitution.
Therefore, in as much as there is neither a single document or legislation known as the Patients’ Bill of Rights nor a rule of enforcement of same, there is more than enough legislation under Nigerian law, that adequately protects the rights of patients in a health facility in Nigeria and anyone whose right is breached can enforce their right by approaching the court for redress.
1. THE RIGHT TO HEALTH AND VIOLATION OF PATIENTS RIGHTS IN NIGERIA: A DESK REVIEW OF HEALTH RELATED LAW IN NIGERIA –
By Dr. Stella Iwuagwu. <https://www.crhnigeria.org/images/pdf/PatientsRights.pdf> Accessed on 2 March, 2023.
2. Eric Okoji: Professional Medical Negligence In Nigeria published on the Nigerianlawguru.com
3. Forbes Advisor: Medical Negligence: Definitions and Legal Examples – https://www.forbes.com/advisor/legal/medical-malpractice/medicalnegligence/
4. Premium Times
<https://www.premiumtimesng.com/news/headlines/325291-patients-billof-rights-making-health-a-human-right-in-nigeria.html?tztc=1> Accessed on
2 March, 2023.
This article is for information purposes, it may not reflect the current state of the law and is therefore not intended to provide legal advice, guidance on
litigation, or commentary on any pending case or legislation.