Dr Paul John,Port Harcourt ,firstname.lastname@example.org,08083658038
According to philosophers, the difference between human beings and other lower animals is the enforcement of their human rights as contained in section 46 of the Constitution of the Federal Republic of Nigeria . Nigerian patients just like their counterparts elsewhere in the world are becoming aware of their rights hence they can sue either the attending doctors or the hospital in case the management of a patient/patients goes awry. In 2016, A couple, Mr & Mrs. Elizabeth Favour Nkwuda and Paulinus Nkwuda, instituted a N500 million suit at Abakaliki High Court against Mile Four Hospital Abakaliki, for alleged medical negligence, poor assessment and mismanagement of their pregnancy, which led to the death of their baby in the womb.
It was reported that the baby allegedly died during an UNAUTHORIZED surgical operation performed on the lady by the medical team of the hospital. Others joined in the suit were the Hospital Administrator, Rev.Sister Celine Anikwem, Dr. Azubuike and Dr. Osuagwu as 2nd, 3rd and 4th defendants respectively. The 3rd and 4th defendants were the doctors who handled the lady’s situation at the labour room. Mr. Nkwuda, in a five-page witness statement on oath through his counsel, Mr Nwugo Nwugo, alleged that neither him nor his wife gave consent either by oral or in signature to the surgical operation which took the life of their baby boy. He said even after the surgical operation on his wife,neither the doctor who performed it nor the nurses or anybody in the team deemed it necessary to inform him or his wife how and why the baby boy died. He added that despite the condition of his wife, she was forced out of her bed and the bed was assigned to another person by the hospital management.
Mr. Nkwuda further said that notwithstanding the medical negligence,the management also forced him to pay N20,950 for drugs and N40,000 for caesarian section. He contended that negligence, mismanagement and poor assessment of his wife’s pregnancy by the 3rd and 4th defendants and their team which occasioned the death of their baby were as a result of incompetence and quackery. Mr Nkwuda said that by reason of flagrant medical negligence, ill treatment to him and his wife, they had suffered shock, physical, mental and psychology trauma and therefore demanded five hundred million naira in compensation from the defendants.
Just recently,an aggrieved widower dragged a senior registrar( at the verge of becoming a consultant) in Obstetrics and Gynaecology to Rivers state Nigerian Medical Association (NMA) over what he termed negligent act of the doctor that led to the death of his wife.The deceased earlier had an emergency caesarean section in the doctor’s private hospital and when bleeding continued, she was referred to the Kelsely Harrison Hospital where the woman finally died. The panel/tribunal found him negligent in not getting consent before the procedure,among other findings. In view of this I shall treat extensively the importance of consent in Nigeria medical practice as our patients are not becoming conscious of their rights .
Section 21 of the Code of the Medical Ethics in Nigeria(CMEN) states that : Practitioners involved in procedures requiring the consent of the patient ,his relation or approoriate public authority must ensure that the appropriate written and signed consent is obtained before such procedures,either for surgery or diagnostic purposes are done,be they invasive or non-invasive. Consent forms should be in printed or in written form either as a part of the case notes or in separate sheets with the institutions’ name boldly indicated.
In the two cases cited above, inability of the attending doctors to get written and signed consents was used as one of bases for the litigation.My heart bleeds when I see colleagues commit legal faux pas in their bid to save the lives of their patients. I always tell my readers that there is a great dichotomy between the law and morality. Some of these patients come to the hospitals after they must have been mismanaged in maternity homes and places manned by quacks and traditional birth attendants. The attending doctors in a bid to save the unborn babies in distress may rush into the operating theatre without getting a written consent from the patient, the relative or the appropriate authority. That is not only illegal ,it is damn unprofessional and unethical. Now that Nigerian patients and their relatives are knowledgeable of their rights, I advise my colleagues to forget the issue of Morality and face the law completely because either in the Tribunal/Panel or in the conventional law court, you are to be tried according to what the law says and not what your conscience,God or your holy book says. When I visited other saner climes like the Uk and US , I learnt one thing in their medical practice, that is Defensive medicine. Before starting the management of any patient, such patient would be notified of the intended treatment,the pros and cons of such line of treatment, any other alternatives ,et cetera. Such line of treatment will never be started unless there is a written and signed document. That is because of the high rates of litigation over there and such practice is surreptitiously and increasingly creeping into our own society.
Professor Ben Carson, a retired and global renown Neurosurgeon at the Johns Hopkins University ,narrated in one of his books how happy he was when as a resident doctor he was to travel to Australia for his Elective posting. The reason behind his happiness was because of the money he would save because America doctors pay heavily for their Malpractice Insurance Yearly but in Australia such insurance fee is cheaper.Over there,doctors and hospitals are regular visitors to the law courts . It is said that when the bird learns to fly without perching that the hunter will reciprocate by shooting without aiming. Against this backdrop, I urge Nigerian doctors to always remember section 21 of the CMEN cited supra in all their dealings with their patients or their relatives and in criminal law we say Ignorantia facti excusat:Ignorantia juris non excusat meaning Ignorance of the law does not afford any excuse for an offence, as contained in s22 of the Criminal Code,laws of the Federal Republic of Nigeria
WHO SHOULD SIGN THE CONSENT?
One thing I learnt why some Nigerian doctors don’t get written and signed consent before their procedures is because of the belief that the consent should be signed by the relatives. This is because doctors believe that in case of the demise of the patient ,it is the relatives that will be be their witnesses. That is legally wrong . It is the duty and an inalienable right of the mature and conscious patient to consent to a procedure about to be carried out on him/her and not the duty of the spouse or any other relative. Subsections of s21 of CMEN cited earlier gives conditions when the relatives are permitted to sign the consent the consent on behalf of the patient.
PATIENTS UNDER 13 YEARS
They are known as minors, s21(3) empowers the attending doctor to take a decision on behalf of the patient, whether the parents give their consent or not. In this category of patients, parental consent is immaterial once the attending doctor knows that the intended treatment will be beneficial to the minor. This subsection empowers the attending doctor to get a court order in order to override the decision of the parents/relatives. Let me state it clearly without mincing any word , it is a criminal offence for a doctor to allow a minor die in his hands just because the parents refused to give consent. Consider for an instance, if the attending doctor knows that a minor requires blood transfusion to survive, he needs no parental consent to do so, all that he needs is a court order. The issue of respecting one’s Religious belief/creed concerning blood transfusion or any other medical procedure does not apply to minors.
PATIENTS BETWEEN 13 AND 16 YEARS
The patients under this age group are still regarded as minors in our context.Here, the Gillick Competence will be applied . Gillick competence was named after Mrs Victoria Elizabeth Mandeville Gillick( Nee Gudgeon) who ran a campaign and sought declaration that prescribing contraception to minors was illegal because the doctor would commit an offence of encouraging sex with a minor ,and that it would be treatment without consent ,as to her the consent for any treatment/medical procedure of any minor shall be vested in the parents. The matter became a subject of litigation. Finally, the majority held that in some circumstances a minor could consent to treatment, and that in these circumstances a parent had no power to veto the treatment.
In the same vein, Lord Scarman went ahead to state that: As a matter of law. the parental right to determine whether or not their minor child below the age of sixteen will have medical treatment terminates if and when the child achieves sufficient understanding and intelligence to understand fully what is proposed. A further ruling in 1990 stated that : ‘if a child is deemed Gillick competent, such a child has every right to prevent the parents from viewing their medical records and any hospital staff who discloses the medical records of such child to the parents ,without consent from the child ,is liable for prosecution’ .There are Australian and Canadian versions of this Gillick Competence but since we were colonized by the British, we inherited some of their laws at Independence and this Gillick Competence is part of our own law. In summary, S21(2) allows the attending doctors to accept the consent of the child in this context once the child understands the benefits and consequences of accepting or rejecting a proposed treatment .
PATIENTS BETWEEN 16 AND 18 YEARS
S21(1) of CMEN maintains that rights to consent or object to a treatment/procedure by this category of patients take pre-eminence over their parents’ rights ,however in emergency situations ,their parents’ can consent for them .
By extrapolation, patients above 18 years have every right to give consent or object to a treatment or medical procedure and the only situation the relatives/spouses’ can sign for them is in the case of medical emergency where the patient is not fully conscious. In view of this , if a practitioner fails to obtain consent just because the spouse or the relatives are not around when the conscious patient is rushed to the health facility, such doctor is liable and he does not have any defence during trial.If the patient is conscious let him /her consent and if the doctor is afraid of the relatives denying the signature of the patients who signed ,then finger prints of the conscious patients may be used in addition to the signatures at least forensic experts are there to analyse them in case the eventuality occurs.
Doctors should be aware of the nature of Nigerians. Whatever we learn from our foreign counterparts ,we try to magnify them to our advantage. Consider religion, neither Christianity nor Moslem originated from Nigeria or even Africa but today we kill ourselves over religion. Sequel to this, a husband who senses that the in-laws may accuse him of using their daughter for money ritual or for not taking proper care of their daughter may start up litigation against the doctor(s) or the hospital at least to divert attention. Lawyers for who they are, are always there to take up any brief from any client even when it is crystal clear that the case may not fly in the law-court, at least the lawyer will smile to the bank courtesy of the filing fee,appearance fees among other professional fees and charges. Woe betide the medical practitioner when the contracted lawyer finds a lacuna in the management of the deceased patient,devil will be bemused at the litigatios that will follow therein. This article is to sound a stern warning to my fellow practitioners not to ignore this ‘small but might ‘ aspect of patients’ management just because the doctor wants to save the unborn baby in distress who might have been mismanaged in maternity homes or by quacks and traditional birth attendants. It will be unfair for the fully licensed practitioner(s) to bear the brunt of the atrocities committed by quacks,traditional birth attendants and maternity homes just because the doctors acted fast to know if they could save the unborn baby in distress.