On March 11, 2020, the World Health Organization (WHO) declared that an outbreak of the viral disease COVID-19 – first identified in December 2019 in Wuhan, China – had reached the level of a global pandemic. Citing concerns with “the alarming levels of spread and severity,” the WHO called for governments to take urgent and aggressive action to stop the spread of the virus.
The International human rights law guarantees the right of everyone to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it. Article 16 of African Charter on Human and Peoples’ Rights provides that every individual shall have the right to enjoy the best attainable state of physical and mental health. States who are Parties to the present Charter are mandated to take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.
Section 46(1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) provides:(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 or other persons.
The above section recognizes that in the situation of serious public health threats and public emergencies threatening the life of the nation, restrictions on some rights can be justified when there is a Law duly enacted in support of the restriction.
The UN high Commissioner for human rights, Michelle Bachelet, a pediatrician by training, has said that “to effectively combat the outbreak means ensuring everyone has access to treatment, and is not denied health care because they cannot pay for it or because of stigma.”
Therefore, Governments should work to combat stigma, discrimination and accord respect for dignity of patients by training health workers on COVID-19, on the need to respect the fundamental rights and legal rights of patients.
It is against this background that this article examines the need of respecting the fundamental rights of Covid 19 patients and their legal rights as patients as provided for by our laws.
A patient is anyone who has requested to be evaluated by or who is being evaluated by any healthcare professional. Patient rights are those basic rules of conduct between patients and medical caregivers as well as the institutions and people that support them. Patients’ rights encompass legal and ethical issues in the provider-patient relationship. The inkling of patient’s rights saw its inception in 1948 when the Universal Declaration of Human Rights was formalized. This recognised the dignity of patients and their right to be treated as a human being, as well as recognizing the duty of care owed to them by medical practitioners and the state. A careful perusal of the legal frameworks that provides for patients’ rights and responsibilities, they have three main objectives: to Increaseclient confidence that the health care system is fair and responsive to client needs; to confirm the importance of a strong relationship between patients and their health care providers; and to confirm the critical role consumers play in safeguarding their own health
The recognition and promotion of patients’ rights have been enhanced by various factors such as special reforms of health systems, the continuing progress of medical science, the fine tuning of society to values arising from fundamental human rights, and the important changes occurring in the health care provider–patient relationship. According to WHO, patients’ rights are universal, their elementary components, mechanism of implementation, and related legislative actions vary among countries.
On the 31st of July 2018, Vice President Yemi Osinbajo launched the ‘Patients’ Bill of Rights’ (PBoR), championed by the Consumer Protection Council (CPC) and Federal Ministry of Health to protect the Nigerian patient and ease access to quality healthcare services. The PBoR is an aggregation of patients’ rights that exist in other instruments including: The Constitution, Consumer Protection Act, Child Rights Act, Freedom of Information Act, National Health Act, the Hippocratic Oath, other professional ethical codes and sundry regulations.
Victims of Covid 19 are referred to the hospital/Isolation centres to be treated by medical practitioners and this will help in curbing the spread of the virus. In ABATAN V. AWUDU, [2014] 17 N.W.L.R. (Pt. 430) the Court of Appeal per Aderemi JCA, held that “The relationship between a Doctor and his patient is one of trust and confidence; a relationship where one has the power and the duty to treat and restore the other to mental and physical well-being.” With this enormous power comes an enormous responsibilityand consciousness to preserve the right of a patient and failure to do that will make the doctor incur liabilities.
RIGHTS AVAILABLE TO COVID 19 PATIENTS
Covid 19 patients are first and foremost citizens of Nigeria and are entitled to enjoy their fundamental rights as provided by our constitution. However, due to their health condition and the need to protect the right of others, some of the fundamental rights they are entitled to will be restricted. Also, by virtue of the new status acquired as a result of this ruthless Covid-19, they are also entitled to certain rights as patients as provided for by our Laws. Some of these rights include:
1. RIGHT OF ACCESS TO INFORMATION: Open and honest communication is an integral part of the doctor-patient relationship. Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their conditions. For a medical practitioner to properly treat Covid 19 patient, he needs to take a full medical history of the patient. If a health care provider fails to take such history, he will be liable in negligence.
It is important to note that the duty to take medical history is an ongoing process. A medical practitioner should always inquire as to the progress of medical history of the patient. In CHIN KEOW V. GOVERNMENT OF MALAYSIA, (1964) 1 MLJ 322– a doctor was held negligent for not inquiring about the medical history of a patient. If he had done that he would have known that the patient was allergic to penicillin.
To boot, Section 23(1) of National Health Act 2014 (NHA) provides: Every health care provider shall give a user relevant information pertaining to his state of health and necessary treatment relating thereto including:
(a) The user’s health status except in circumstances where there is substantial evidence that the disclosure of the users health status would be contrary to the best interests of the user;
(b) The range of diagnostic procedures and treatment options generally available to the user;
(c) The benefits, risks, costs and consequences generally associated with each option; and
(d) The user’s right to refuse health services and explain the implications, risks, obligations of such refusal.
(2) The health care provider concerned shall, where possible, inform the user in a language that the user understands and in a manner which takes into account the user’s level of literacy.
According to Patients’ Bill of Right, the health care provider is under obligation to inform the patient whether the proposed treatment or procedure is experimental or part of ongoing research. Therefore, a Covid 19 patient is entitled to necessary information as provided by section 23 NHA except where it will not be in his best interest.
2. RIGHT TO CONFIDENTIALITY: A Covid 19 patient is entitled to his right of Privacy and confidentiality of all information and medical records provided unless disclosure is vital. Law and ethics state that the doctor-patient interaction should remain confidential. The medical practitioner should never reveal confidential information unless the patient wants this information disclosed to others, or unless required to do so by law. If the release of information is warranted, information should be released in the form of an official signed document.
Section 26 (1) of NHA provides: All information concerning a user, including information relating to his or her health status, treatment or stay in a health establishment is confidential.
(2) Subject to section 27, no person may disclose any information contemplated in subsection (1) unless-
(a) The user consents to that disclosure in writing;
(b) A court order or any law requires that disclosure; or
(i) In the case of a minor with the request of a parent or guardian; and
(ii) In the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative.
(c) Non-disclosure of the information represents a serious threat to public health.
Section 27 NHA states: A health worker or any health care provider that has access to the health records of a user may disclose such personal information to any other person, health care provider or health establishment as is necessary for any legitimate purpose within the ordinary course and scope of his or her duties where such access or disclosure is in the interest of the use.
Governments should ensure that patient confidentiality is protected even as authorities take steps to identify those who may have been exposed to the virus.
3. RIGHT TO DIGNITY OF PATIENTS: The Patients’ Bill of Rights provided for the right to dignity of patients. It provides that every patient is to be treated with respect and dignity, without prejudice to gender, religion, race, ethnicity, and allegation of crimes, geographical location, disability or socio – economic circumstances. The Health providers are treat Covid 19 patients, human remains and tissue samples with care, consideration and dignity without prejudice to gender, religion, race, ethnicity, and allegation of crimes, geographical location, disability or socio – economic circumstances.
It is pertinent to state that the right of dignity of patients has its root from Section 34 of the 1999 Constitution. The victims of Covid 19 are first and foremost citizens of Nigeria and are entitled to enjoy this fundamental right. The right to dignity of human person, under Section 34 of the Constitution is not a nebulous one. The Constitution is clear on what it entails. The Section provides: 34 – (1) every individual is entitled to respect for the dignity of his person, and accordingly- a. No person shall be subjected to torture or to inhuman or degrading treatment.
The court in the case of ZAMAN v. STATE (2015) LPELR CA/J/8C/2013 defined the word “dignity” to mean “The state of being noble; the state of being dignified…
Without prejudice to policies, guidelines adopted by NCDC for the treatment of Covid 19 patients, the right to dignity of person of these patients must be preserved and respected.
3. RIGHT TO CONSENT: Consent, particularly informed consent, is the cornerstone of patients’ rights. Consent is based on the inviolability of one’s person. It means that doctors do not have the right to touch or treat a patient without that patient’s approval because the patient is the one who must live with the consequences and deal with any discomfort caused by treatment. A doctor can be held liable for committing a battery if the doctor touches the patient without first obtaining the patient’s consent. In the case of OKEKEARU V. TANKO, [2002] 15 NWLR (Pt. 791) 657 S.C-the Supreme Court in Nigeria emphasized the need to obtain direct consent from a competent patient. A tort of battery was made out against a medical practitioner who amputated the injured patient, a fourteen year old boy, without obtaining consent from the boy. It was held that the doctor was liable for medical negligence.
According to Charles Patrick Davies in his article “Patient Rights” a patient must be competent in order to give voluntary and informed consent. Thus, competent consent involves the ability to make and stand by an informed, freely made decision. He further stated that part of communication in medicine involves informed consent for treatment and procedures. This is considered a basic patient right. Informed consent involves the patient’s understanding of the following:
What the doctor is proposing to do; whether the doctor’s proposal is a minor procedure or major surgery; the nature and purpose of the treatment intended effect versus possible side effect; the risks and anticipated benefits involved; all reasonable alternatives including risks and possible benefits. Closely associated with informed consent, voluntary consent means that the patient understands these concepts and consents to it.
Consent can be given verbally, in writing, or by one’s actions. Consent is also inferred in cases of emergency or unanticipated circumstances. The PBoR provides that Patients at all times, retain the control of their person and must be informed of their power to decline care upon full disclosure of the consequences of such decisions.Patients have the right to consent or decline participation in medical research, experimental procedures or clinical trials in the course of treatment. However, the health Provider may detain a Covid 19 patient in the interest of public health.
It is instructive to note that the law exists primarily to protect life and preserve the fundamental right of its citizens inclusive of infants. The law would not override the decision of a competent mature adult who refuses medical treatment that may prolong his life but would readily intervene in the case of a child who lacks the competence to make decisions for himself.-ESABUNOR & ANOR v. FAWEYA & ORS (2019) LPELR-SC.97/2009.
In MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. DR. JOHN EMEWULU NICHOLAS OKONKWO (2001) LPELR-SC.213/1999- the Court held that the patient is free to decide whether or not to submit to treatment recommended by the doctor . If the doctor making a balanced judgment that advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational or irrational or for no reason.
It is apposite to state that a patient has the right to consent or decline care and treatment but such right is subject to prevailing laws and upon full disclosure of the consequences of such a decision. In consideration of the need to protect the right of others and curb the spread of Covid 19, the right of liberty of Covid 19 patients will be restricted and they will subjected to isolation by the government and it will help to reduce the spread of the virus.
5. RIGHT TO ACCESS TO EMERGENCY CARE: It is the right of a patient to receive urgent, immediate and sufficient intervention and care in the event of an emergency, prioritizing such needed attention over other factors including cost and payment, as well as law enforcement requirements. A medical practitioner owes a duty to attend to the patient promptly and adequately. Where he fails to attend promptly to a patient he would be liable for medical negligence.
Section 20 NHA provides that a health care provider, health worker or health establishment shall not refuse a person emergency medical treatment for any reason whatsoever.
(2) Any person who contravenes this section is guilty of an offence and is liable on conviction to a fine of Nl00, 000.00 (One hundred thousand naira) or to imprisonment for a period not exceeding six months or to both.
Therefore, in order for the health care providers or doctors on duty to avoid being liable, they should attend to Covid 19 patients promptly and give special attention to those of them in emergency situations.
AVAILABLE OPTIONS TO A COVID PATIENT
There are certain options available to a covid 19 patient where a medical practitioner fails to discharge his responsibility effectively. They include:
- LAYING COMPLAINT TO HEALTH CARE ESTABLISHMENT
Section 30 (1) of NHA provides: Any person may lay a complaint about the manner in which he or she was treated at a health establishment and have the complaint investigated.
(2) The Minister, Commissioner or any other appropriate authority shall establish a procedure for the laying of complaints within the areas of the national health system for which the Federal or State Ministry is responsible.
(3) The procedures for laying complaints shall-
(a) Be displayed by all health establishments in a manner that is visible for any person entering the establishment and the procedure shall be communicated to users on a regular basis;
(b) In the case of a private health establishment, allow for the laying of complaints with the head of the relevant establishment;
(c) Include provisions for the acceptance and acknowledgment of every complaint directed to a health establishment, whether or not it falls within the jurisdiction or authority of that establishment; and
(d) Allow for the referral of any complaint that is not within the jurisdiction or authority of the health establishment to the appropriate body or authority.
(4) In laying a complaint, the person stated in subsection (1) shall follow the procedure established by the Minister or a Commissioner, as the case may be.
- LAYING COMPLAINT WITH THE MEDICAL AND DENTAL COUNCIL OF NIGERIA
The medical profession in Nigeria is regulated by the Medical Dental Council of Nigeria (MDCN). The Medical and Dental Practitioners Act in SECTION 1 established the MDCN. SECTION 15(3) OF THE MEDICAL AND DENTAL PRACTITIONER ACT established the Medical and Dental Practitioners Disciplinary (the Investigation Panel) whose responsibility is to conduct investigations into any case where it is alleged that a registered person has misbehaved in his capacity as a medical practitioner amongst other function. The MDCN’S tribunal established by SECTION 15(1) OF THE MEDICAL AND DENTAL PRACTITIONER ACT has the power to do three things when the panel finds the medical practitioner guilty of infamous conduct in any professional respect, in line with the provision of SECTION 16(2) OF THE MEDICAL AND DENTAL PRACTITIONER ACT may order the registrar to: strike the person’s name off the register; or suspend a doctor’s license for a period not exceeding six months; or admonish a doctor.
However, the MDCN’s cannot issue compensation. So, if a patient is displeased with the decision of the MDCN’s he can proceed to the High Court to sue for negligence and to claim damages. The Panel investigates and reports cases of professional misconduct only and does not have right to entertain criminal proceeding because only the regular court can do that-EGEJURU V MEDICAL & DENTAL PRACTITIONERS INVESTIGATION PANEL & ORS (2017) LPELR-CA/OW/190/2014. By virtue of SECTION 16(6) OF THE MEDICAL AND DENTAL PRACTITIONER ACT, a medical practitioner has a right to appeal to the court of appeal against the decision of the Disciplinary Tribunal.
It is important to note that the professional responsibility of the Medical practitioner does not exempt the Medical practitioner from either criminal or civil liability. Hence, a Doctor who breaches his duty of care may be liable to face disciplinary actions before the Medical and Dental Practitioners Disciplinary Tribunal, as well as face criminal actions where the case warrants such civil action at the instance of the injured patient or his family.- OLOWO V. NIGERIAN NAVY[2011] 18 NWLR(pt 1279) 659 SC.
- Patients can also seek legal redress through a Court of law by filing civil claims for tortuous liability like battery and a breach of duty of care. A Covid 19 patient can also sue for breach of fundamental right where his main claim evolves from the provisions of Chapter IV. It has been held in a long line of cases that where there is a right there is a remedy (Ubi jus ibi remedium). The Court in the case of UNUIGBE & ANOR v. UWAHEREN & ANOR (2018) LPELR-CA/B/324/2012 defined remedy as: “…anything a Court can do for a litigant who has been wronged or is about to be wronged.” The court can award damages in favour a patient who is able to prove his case.
It is pertinent to state that this legal right available to a patient is different from the fundamental rights a patient is also entitled to Fundamental rights is a right guaranteed in the Nigerian Constitution and can be found entrenched in a particular chapter therein, i.e Chapter IV 1999 Constitution.-WAEC v. Adeyanju (2008) Vol 6 M.J.S.C 1 at 33.
- A report can be made at the Police Station, they will prosecute where investigation reveals gross negligence or where there is evidence to show that the health care providers failed to attend to a Covid 19 patient in times of emergency. Prosecution of Health Care providers: SECTION (20)(2), a health care provider who refuses to attend to a patient in emergency situations commits an offence and shall be liable on conviction to a fine of N100,000.00 (One Hundred thousand Naira Only), or to imprisonment for a period not exceeding six months or to both.
Chidera Nwokeke is a student of Nigerian Law School, Lagos campus. Nwokekechiderachidera@gmail.com, 08120945787