WHO HAS THE AUTHORITY TO DISCIPLINE AND PUNISH A DOCTOR IN OUR TEACHING HOSPITALS

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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