By Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACS, DSC)
Children below the age of 18 in Nigeria are precluded and ethically incapacitated to give informed consent to medical treatment. This ethical incapacitation is encapsulated in Rule 19 of the 2008 Code of Medical Ethics of Nigeria. Rule 19 states as follows:
“Where the patient is under age, (below eighteen years 18 by Nigerian law), or is unconscious, or is in a state of mind constituting a mental impairment, a next-of-kin should stand in”.
The Code of Medical Ethics is a set of rules that govern the tenets of medical practice in Nigeria. It is the Rule Of Medical Professional Conduct for medical practitioners. Medical practitioners must follow this rule, lest they fall on the bad side of the rules. Acts or omissions contrary to this Code of Medical Ethics are acts or omissions that would constitute medical malpractice and gross misconduct, punishable by the Medical and Dental Council of Nigeria, as immortalized in the Medical and Dental Practitioners Act. The punishment could either be the suspension of such misconducting medical practitioner from medical practice, or striking off the misconducting medical practitioner’s name from the Roll of the medical practitioners in Nigeria.
Code of Medical Ethics is not a law stricto senso. It is therefore not a matter to be adjudicated in the regular Nigerian courts. Violation of the Code only gives rise to a proceeding in the Disciplinary Committee of the Medical and Dental Council of Nigeria, which is a Tribunal. If the Disciplinary Committee is convinced that the medical practitioner violated any of the provisions of the Code, the Committee could instruct that the Registrar strike off the practitioner’s name from the register of medical practitioners laid with the Medical and Dental Council of Nigeria. The practitioner ceases to be a medical practitioner when the name is struck off the Roll.
It is not uncommon to find some of the Rules coinciding with some criminal offences of the general laws of Nigeria, prescribed in a criminal statute. The effect is that a court of law could contemporaneously be seized of the matter in the regular court as the Disciplinary Committee , and the matter could as well be justifiable and entertained in a regular court of competent jurisdiction.
The far-reaching effects of the implications of violating the Code of Medical Ethics include that no medical practitioner who still wants to practice medicine in Nigeria would want to go against its provisions, lest they be de-medicated.
The big issue arises where the provisions of the Code violate the Constitution of the Federal Republic of Nigeria, or any other superior law of Nigeria for the time being in force. While the medical practitioners could escape being de-medicated by following the provisions of the Code, could they be saved the whooping damages to Nigerian litigants who are dissatisfied with the doctor’s unconstitutional and illegal acts or omissions that violated the litigant’s fundamental human, constitutional and statutory rights. The answer to this question is beyond the scope of this article.
It is trite that there is a hierarchy of laws in Nigeria. The Constitution of the Federal Republic of Nigeria is the Grund Norm. It is the parent law of all laws. It cannot be contradicted by any other law, and that other law still survives. Following next to the Constitution is the Acts of the National Assembly and Laws made by the State Houses of Assembly. Next in rank are the subsidiary legislations and the executive fiats. The Code of Medical Ethics is a subsidiary legislation at its best. Therefore, where a provision of the Code of the Medical Ethics conflicts with the provisions of the Constitution, an Act of the National Assembly or a Law of the State Assembly, such provision of the Code of the Medical Ethics becomes unconstitutional, illegal, null and void, dead, and of no effect.
The provision of the Rule 19 of the Code of the Medical Ethics of Nigeria 2008 on consent and confidentiality of the child, being the operational code of ethical conduct for Nigerian Medical Practitioners, is one such dead rule. This is because this provision violates sections 37 and 45 of the Constitution of the Federal Republic of Nigeria 1999 as amended. This is in addition to the violations of other statutes higher in rank to the Code in Nigeria.
The relevant provisions of the Constitution violated by Rule 19 of Code are hereby laid for dissection and construction.
Section 37 of the Constitution states:
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”.
This protection is afforded every citizen of Nigeria irrespective of their age. However, the protection is not extended to foreigners. This constitutional protection, is a fundamental right, and could extend to foreigners under some statutes that Nigeria is signatory to. The constitutional protection of citizens’ privacy is the father of confidentiality in medical practice, in addition to other statutory protections geared towards the protection of patients’ privacies in the medical settings.This protection is however not absolute. It is derogated by section 45 of the same Constitution, where it states thus:
“(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons”
The import of the above laid provisions of the Constitution is that age is not among the factors to be considered when the right to privacy of citizens is in issue. This means that a 14 year old girl could approach her physician and demand for contraceptive pills, an abortion or post abortion care, without the parents breathing down her neck. She will be enjoying her constitutional rights while doing this, and the physician is bound by the Constitution to keep her confidence. This is not the case in Nigeria. The Code of Medical Ethics has, in pugnacious impudence, looked the Constitution in the face and said, No Sir.
The story does not just end there though. This is because for a physician to institute treatment options on a patient, the patient must consent. This consent has to be informed consent. To give informed consent, the giver of the consent must be able to understand what they are consenting to and be able to appreciate the consequences of such consent being carried to fruition. The capacity of a child to give informed consent is, on this basis, controversial.
The criteria for determining this capacity to give informed consent by a child, has been given judicial voice, as laid down in the Gillick Competency parameters as enunciated by Lord Frazier in the famous and celebrated Gillick suit.
It is beside controversy, therefore, that age is not the sole determinant of a person’s capacity to give informed consent, to the extent that the blanket of 18 years as depicted in the Nigerian Code of Medical Ethics, has not only become futile, but has also become an anathema to the spirit and intentions of the Constitution of the Federal Republic of Nigeria 1999 as amended. Even full-fledged adults have been found to make mortal blunders in their choices of line of medical treatment, such that the choices of the guardian in loco parentis as regards informed consent may not necessarily coincide with the best interest of the child.
The provision of Rule 19 of the Code of Medical Ethics has thus suffered an incurable defect, and has conflicted with the Constitution. It must therefore die natural death, and given a dignified interment on the anticipated gavel of a court of competent jurisdiction.
It is remarkable and instructive, how the jurisdictions from where Nigerian Code of Medical Ethics 2008 were transplanted, have moved away from that archaic and unconstitutional provision of Rule 19, and have adopted the Gillick Competence caveat, as well as the Frazier’s Guidelines in attending to consent and confidentiality of the child. Nigeria cannot be left behind in this drive to afford the child adequate constitutional protection.
The importation of the guardian’s consent on behalf of the child in medical practice, as well as in other fields of the child’s life, is not an attempt to replace the child’s fundamental rights with that of the parent. No. The child is the repository of his fundamental and constitutional rights. The rationale behind the introduction of the guardian’s superseding informed consent is actually to protect the child rather than to thwart the child’s fundamental rights. A child whose age is less than 18 is presumably considered, although erroneously, incapable of giving informed consent. To the proponents of this erroneous proposition, the child under 18 years does not have the capacity to appreciate the ramifications of decisions on her medical care.This is an obscene generalization. In fact, some under 16 children have exhibited better understanding and appreciation of what they medically want and need, than some full adults with brains wracked by obtuse superstitious beliefs and irrational religious inclinations.
The Code of Medical Ethics of Nigeria cannot remove from the child with the left hand what the Supreme Grund Norm of Nigeria has handed over to every citizen of Nigeria on a platter. The child remains the repository of their constitutional rights that are not derogated based on age, as is obvious in the case of their right to privacy, confidentiality and the capacity to give informed consent. This right has not been delegated to the guardians in any way. Guardians only step in where the interest of the child is in jeopardy.
The child is at liberty to wield this enjoyment of his constitutional right of privacy once they could appreciate the concept of their medical care irrespective of their age.