the media last week that President Goodluck Jonathan had signed the National Health Bill into law. As a legal framework for the management and regulation of the health sector the Act has addressed some of the challenges and concerns of the Nigerian people with respect to access to medical care. Unfortunately, some of the provisions of the Act have empowered doctors to violate the right of Nigerians to life by removing the organs of living persons without authorization. Before examining the obnoxious provisions of the Act it is pertinent to note that it is the most comprehensive legislation on healthcare in Nigeria.
Section 46 of the Act which has barred public officers from travelling abroad for medical check-up, investigation and treatment at public expense should compel the federal government to fix and upgrade some hospitals to international standards. To ensure the provision of basic health services to Nigerians not less than 1% of the consolidated revenue fund of the federal government shall be allocated to the National Provision Fund on an annual basis. But having regard to the enormous costs of medical services the 1% allocation is like a drop in the ocean. It is however hoped that the National Health Insurance Scheme will be reorganized to partner with the National Health Council (created under the Act) to ensure the provision of efficient and affordable healthcare delivery system throughout the country.
The Act has imposed a mandatory duty on all hospitals and medical establishments to provide medical services, even for emergency cases like accident, without demanding for police reports. Going by the letter and spirit of the Act it is indisputable that the right to health has been elevated to the level of justiciability as anyone denied of access to basic health has the unquestionable right to seek redress in court. If religiously implemented by the federal government the Act is going to tackle all preventable diseases including infant and maternal mortality. Any industrial action in the health sector shall be resolved within as health is classified as an essential service by the Act.
It is however doubtful if both chambers of the National Assembly which had passed the Bill and the President who assented to it studied the provisions of the law. Otherwise how can the President and the federal legislators justify section 51 of the Act which provides as follows:
“1. A person shall not remove tissue from a living person for transplantation in another living person or carry out the transplantation of such tissue except:
(a) In a hospital authorized for that purpose; and
(b) On the written authority of;
(i) The medical practitioner in charge of clinical services
in that hospital or any other medical practitioner authorized by him or her; or
(ii) In the case where there is no medical practitioner in
charge of the clinical services at that hospital a medical practitioner authorized thereto by the person in charge of the hospital.
2. The medical practitioner stated in subsection(1)(b) shall not be the lead participation in a transplant for which he has granted authorization under that subsection.
3. For the purpose of transplantation, there shall be an independent tissue transplantation committee within any health establishment that engages in the act and practice of transplantation as prescribed.”
It is indubitably clear from the said section 51 of the Act that the National Assembly has infringed on the fundamental rights of every citizen of Nigeria to the dignity of their person and the right to privacy as well as freedom of thought, conscience and religion guaranteed by sections 34, 37 and 38 of the amended 1999 Constitution. As there can be no justification for reducing the body of a Nigerian citizen to spare parts of vehicles which can be removed and sold in the market the National Assembly has, by the obnoxious provision of the National Health Act, 2014, abused its legislative powers.
Before the passage of the controversial bill into law the constitutional right of the Nigerian people to reject or refuse medication including a life saving treatment on religious grounds had long been recognized by the courts. The essence of the constitutional right is that an individual should be allowed to choose a course for his/her life subject to overriding public interests. Hence, the consent of patients or their family members is required where surgical operations are recommended. Where such consent is not freely given a doctor cannot perform an operation on any person without a court order. From the information at my disposal a powerful Foundation in the United States influenced the introduction of section 51 to the bill at the National Assembly. It is sad to note that none of the legislators could challenge the sponsors of the provision which cannot be found in any of the health legislations in western countries.
Since medical doctors have been empowered to decide when to remove organs from living persons Section 51 of the Act constitutes an infringement of the rights of citizens to life, dignity of their persons as well as the rights to privacy and freedom of thought, conscience and religion guaranteed by Section 33, 34, 37 and 38 of the Constitution. In Medical and Dental Practitioner Disciplinary Tribunal v. Okonkwo (2001) WRN 1 the Supreme Court held that a patient has the constitutional right to reject a life-serving treatment on religious n grounds. In the leading judgment of the apex court Justice Emmanuel Ayoola held inter alia:
“The patient’s constitutional right to object to medical treatment or, particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 Constitution…The right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorized invasion. The right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to religious belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy.”
It is pertinent to point out that it is the medical doctor or manager of a hospital and not the donor who has the power to authorize that an organ be removed from a living Nigerian citizen. The definition of “organ” in the law includes kidney, liver, heart, lens, ovarian eggs, sperm . The proponents of the law are likely to refer to section 48 thereof which provides for the “informed consent” of a donor. But such consent “may be waived for medical investigations and treatment in emergency cases”. As far as the fundamental right of a Nigerian to dignity is concerned there can be no waiver of consent under any medical condition. Even where a patient is unconscious or incapable to give informed consent the power is transferred to a next-of-kin or parents in the case of children.
Since the consent clause may be waived for “medical investigation and treatment in emergency cases” it does appear that medical practitioners and hospitals have been licensed to remove tissues and organs of living Nigerian citizens as any medical condition may be considered an emergency. By denying patients the right to give consent or authorize the removal of vital organs from their bodies the National Assembly has empowered doctors to subject Nigerians to degrading and inhuman treatment. In other words, Section 51 of the Act constitutes an egregious assault on the humanity of Nigerians. The provision of the law cannot be allowed to be implemented in any civilized society.Therefore, the National Assembly should expunge it from the law without any delay.
The writer is Femi Falana, SAN