This article has become long overdue considering the topical
nature of the subject matter.
However, I shall first limit the scope of discipline so that
we do not bite more than we can handle in this article.
The scope of discipline and punishment being discussed in
this article is limited to the punishment of a doctor who failed in attending to his
hospital duties, like coming late to work, not coming to work at all, refusing
to do what he ought to do at work, disobeying instructions from seniors,
refusing to respect or engaging in the molestation of junior doctors, violating
hospital rules and regulations, residency regulations and rules etc. Therefore,
the punishment envisaged in this article does not include those discipline in
the competencies of Medical and Dental Council of Nigeria (MDCN)
Furthermore, there are different categories of doctors in a Teaching Hospital namely the house officers, the registrars, the senior registrars, the medical officers and the consultants. We shall therefore see who, in a Teaching Hospital, has the legal
authority to discipline each category of medical personnel.
It is no more news that doctors have been punished by their
senior colleagues, their HODs, the CMAC, the CMD and the Hospital Management Board.
Salaries have been withheld or deducted, suspension effected and interdiction issued, there are outright
removal and disengagement, extra calls have been given, calls duties repeated, documents for exams refused to be
signed, professional exams denied, annual leave and maternity leave denied and advancement
denied. The list is endless.
Who can mete out punishment to a doctor in our Nigerian
Teaching Hospitals. The principle laws that regulate the discipline of a
doctor in a Teaching Hospital in Nigeria are the Constitution of the Federal
Republic of Nigeria, as it affects fair hearing in section 36, and the University
Teaching Hospital Reconstitution of Board Act of the different federal Teaching
Hospitals, and the Teaching Hospital Laws of the different states of Nigeria. There are still other relevant laws and regulations that I shall refer to in this article.
I shall constantly refer to the relevant sections of the
University Teaching Hospital Reconstitution of Board Act in this discussion,
which is essentially in pari material with the different state Teaching
Hospital Laws. Any other disciplinary authority or measure meted out unto a
doctor in any Teaching Hospital in Nigeria within this scope of discipline,
than that which I shall elaborate here, is not only illegal, but actionable and
rectifiable. In other words, a victim of such discipline could apply to the
administrative authority of the Hospital to punish the usurper of authority or
take legal action in the National Industrial Court or any other applicable laws, to enforce right and
recover millions in damages.
The laws regulating the punishment of a doctor in the
Federal Teaching Hospitals in their order of hiarrhachy can further be expanded
thus:
1. The Constitution of the Federal Republic of Nigeria 1999
as amended
2. The University Teaching Hospitals (Reconstitution of
Boards, etc) Act ( henceforth, Management Board Act).
3. National Code of Health Research Ethics 2006 (the
“Research Code”), issued by the National Health Research Ethics Committee of
Nigeria, Federal Ministry of Health
4. The Teaching Hospital Staff Regulations 1976 (the
“Regulation")
5. The Public Service Rule (PSR)
Other laws and regulations of general nature include the
Medical and Dental Practitioners Act, etc. It must be noted that numbers 1 and
2 are the principal laws, and other laws and regulations derive from, and must
of necessity, not contradict then, lest they become invalid to the extent of
such inconsistency with 1 and 2.
Discipline of a doctor is not an on the spot, spur of the
moment decision. It is not also done according to the whims and caprices of the
man that exercises the authority. It is a systematic process protected by law. It starts from reporting and ends with the punishment. The scope of this article does not include who can report; it is on who can discipline or punish.
The persons authorized to discipline a doctor in the
Teaching Hospitals are ONLY:
1. The CMD
2. The Hospital Management Board
Take note of the above very well. It simply means that a
registrar cannot punish a house officer; the senior registrar cannot punish the
house officer or the registrar; the consultant cannot punish the senior
registrar, the registrar or the house officer. The HOD and CMAC also have no
authority to punish any doctor. These persons mentioned above can report, and in fact, can be called as witnesses. However, they cannot validly and legally meet out punishment to any doctor.
The relationship created in the teaching hospital environment is
that of teacher and student where mutual respect should reign and punishment
capabilities removed and handed over to the Chief Medical Director (CMD) and the Hospital Management
Board.
Section 9 of the Hospital Management Board Act provides for
removal and discipline of clinical (medical officers and consultants belong
here) administrative and technical staff of the Hospital.
This is in contrast to section 8 which provides for the
discipline of students (which includes undergraduate medical students, house
officers, registrars and senior registrars) and section 10 which provides for
the discipline of junior staff (doctors are not included here).
There is no separate provision for the discipline of senior staff. It
therefore means that the discipline of all the senior staff is provided for in
section 9.
The clear provisions as to the punishment of consultants can
be easily found in sections 5 and 9 of the Management Board Act, by marrying
section 5(5) with section 9(1)(2)(3)(4) and (6). It is important that I lay
bare the import of these provisions, so as to elucidate and clear the sophism employed
by some CMDs to bamboozle and execute illegal intents in some Teaching
Hospitals.
Section 5 of the Act provided for the appointment of the
CMD, DA, CMAC and Consultants. It is important to note that these employees are
the only members of staff expressly mentioned in this section. Expressio unius
est exclusio alterius.
This simply implies that consultants are highly reckoned
with, being the only category of employees created by the same section that
created the only four statutory hospital Directors. The Teaching Hospitals laws, being laws for the primary establishment of institutions for the training of medical students, is a good law when it provided for the appointment of the trainers and the administrative staff in section 5.
Section 5 also handed over the discipline of consultants to
the Hospital Management Board, by expressly mentioning the consultants to the
exclusion of any other category of employees. This also means that even if any
other categories of employees are disciplined by any other organ of the
Hospital Management, the consultants are clearly excluded from such organ.
The CMD is empowered to discipline the junior staff in
section 10 of the Act. The Hospital Management Board is empowered to discipline
the students (house officers, registrars and senior registrars) in section 8 of
the Act.
Curiously enough, but not vague or ambiguous on perusal,
both the CMD and the Hospital Management Board are empowered to discipline
clinical, administrative and technical staff of the Hospital in section 9 of
the Act. The consultants and medical officers are in this category in the
clinical staff part.
However, section 9(1) and 9(3) empowered only the Hospital
Management Board to discipline the clinical, administrative and technical staff
of the Hospital. In both subsections, the Board is empowered to discipline ANY
MEMBER OF STAFF. This simply means that any member of the clinical,
administrative and technical staff (including medical officers and consultants)
can be disciplined by the Board without exception. This also buttresses the
wisdom in section 5(5) that the consultants SHALL be disciplined by the Board.
Section 9(2), on the other hand, empowered the CMD to
discipline A MEMBER, and report such suspension to the Board. Therefore, the
CMD is not empowered by the Act to discipline ANY MEMBER of the clinical,
administrative or technical staff. Here lies the difference between the powers of the Hospital Management Board to discipline ANY MEMBER OF THE clinical,
administrative and technical staff, and the power of the CMD to
discipline A MEMBER of this categories of staff.
The CMD is not empowered to discipline ANY MEMBER of
clinical, administrative and technical staff, yet he is empowered to discipline
some members of the clinical, administrative and technical staff of the
Hospital. Doctors are not in the administrative and technical staff category. They belong to the clinical staff. The clinical staff of the Hospital include consultants, medical
officers, pharmacists, nurses etc. The question now is "which members of
these categories of staff are exempted from the discipline of the CMD"?
The answer is simple: THE CONSULTANTS. This is
because section 5(5) placed their discipline squarely on the Hospital
Management Board.
The combined effect of sections 5 and 9 of the Hospital
Management Board Act is that only the Hospital Management Board can take
disciplinary action against a consultant. The combined effect is that the CMD
of cannot take a disciplinary action against a consultant in in a Teaching
Hospital. However, the medical officers are caught up in the ambits of the
disciplinary powers of the CMD.
There are four organs of management created by the
Management Board Act in sections 1 and 5 of the Act; namely
1. The Hospital Management Board (The Management Board)
2. The Chief Medical Director (CMD)
3. The Chairman Medical Advisory Committee (CMAC) , and
4. The Director of Administration (DA).
These management organs/cadres are complemented by the
actions of the Minister, etc, and the President of the Federal Republic of
Nigeria.
It must be noted that there is no organ of Hospital
management called "Management of the Hospital" as paraded by some
CMDs. This otiose and hazy acronym was manufactured, coined, used and employed
by some CMDs to use to intimidate and victimize anybody that they do not
like their faces, in flagrant usurpation of the functions and duties of the
statutory Hospital Management Board, under the cloak of that illegal name and
contraption.
The Hospital Management Board Act did not create an
additional entity called "Management of the Hospital ", neither did
the Act give the CMD the power to assemble another team that would commence and
perform the functions of the Hospital Management Board in the absence of a
re-constituted Board; rather, the Act
specified the functions of the CMD, and also the functions of other cadres of
the management, which are the only functions delegated to them by the Act, and
which are the only functions they can validly perform. Delegata potestas non
potest delegari.
The Act also provided for exigencies in section 18, where
the President of the Federal Republic of Nigeria is empowered to step in when
there is a lacuna.
Therefore, where there is a lacuna created by the
dissolution or non-reconstitution of the Hospital Management Board, the President
of the Federal Republic of Nigeria, or through his Minister, becomes the Hospital Management Board; and
not the CMD or his contraption of a guise in the name of "Management of
the Hospital".
It is crystalline from the Act that only the President of
the Federal Republic of Nigeria can do the work of the Hospital Management
Board in the absence of a reconstituted Hospital Management Board, and not the
CMD. See section 18 of the Act.
The CMD is charged with the implementation of actions to the
extent permitted by the Act, including the day to day running of the Hospital.
The punishment of a consultant is outside of that task, as any disciplinary
action on a consultant is within the exclusive jurisdiction of the Hospital
Management Board. See again section 5(5) of the Act supra.
Some CMDs, instead of applying to the President of the
Federal Republic of Nigeria for disciplinary action against a consultant, in
the absence of the Hospital Management Board to discipline such consultants, or
at least tarry awhile for the reconstitution of a new Hospital Management
Board, they would most of the time, hastily and acrimonously, take the laws
into their own hands, unilaterally and illegally interdict disagreeable and
disagreeing consultants, in total violation of all the relevant laws. They even
go ahead and intimidate, harass, denigrate and humiliate such consultants so
much, in a job the Hospital Management Board employed them to do, in the first
place; a job that such consultants may have been doing creditably.
These consultants immensely lose their dignity and respect,
not just among their friends and colleagues, but among family, household and
the general public, with these actions of such CMDs, taken, in cahoots with
some other personnel in this hospitals.
The question will now be, "what happens to the
discipline of house officers, registrars, senior registrars and consultants,
who can only be disciplined by the Hospital Management Board, if there is no Hospital
Management Board in place, at the time an offence is committed "?
The answer is simple. They cannot be therefore disciplined
until a Board is reconstituted. This is the simple fact and truth. Only the
President of the Federal Republic of Nigeria, or the Governor of the state, as
the case may be, or through their express agents, that can intervene and discipline those mentioned categories of staff, in the absence of a
reconstituted Hospital Management Board.
It must also be stated clearly that no other person can do
the duty of discipline on behalf of the CMD or the Board unless the laws permitted that. The CMD cannot
delegate his job to CMAC, for instance. The Hospital Management Board cannot
delegate its own duty to CMD or CMAC, for instance. This is because delegata
potestas non potest delegari.
©Awkadigwe Fredrick Ikenna
MBBS, LLB, MWACOG, DSC.
awkadigweikenna@yahoo.com
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© Copyright 2017 Ikenna Fredrick Awkadigwe. All rights reserved. No part of this publication is permitted to be used in any way, copied, photocopied printed, reproduced, transferred, adapted, argued in any fora, used in Court or recreated in any form or resemblance whatsoever, without the written approval and license of the author, Ikenna Fredrick Awkadigwe.
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