This article seeks to expose the illegality or lack of legal force of the new imposition of the new Nigerian Medical Association (NMA) doctor's stamp by the NMA and the Nigerian Health Minister. At the end of this article, the reader will be peacefully led to the clear conclusion that neither the minister nor NMA has the right or power to impose the new stamps on doctors for use, as doctors sign medical reports and documents.
It must be noted that some other professions have been able to make the appending of their professional stamps to documents endorsed by their professionals, a prerequisite for the competence, validity and authenticity of such documents. In fact, in the celebrated case of All Progressives Congress (APC) v General Bello Sarkin Yaki, the Supreme Court, in 2015, affirmed that failure to affix NBA Stamp on a Legal Document rendered such document incompetent.
The Supreme Court therefore affirmed that if without complying with the mandatory provision of Rule 10(1) Rules of Professional Conduct for Legal Practitioners 2007 which requires a lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, who signs or files a legal document to affix on any such document a seal and stamp approved by the Nigerian Bar Association, the document so signed or filed shall be deemed not to have been properly signed or filed.
The court has therefore declared that the signing and or filing of a legal document by a lawyer will not be competent if the NBA seal and stamp is not affixed to it. What would happen when a legal practitioner has applied for the NBA seal & Stamp and has the evidence of payment but not yet given the seal & Stamp, is a speculation for another day.
The recent utterances and circulars purporting to emanate from the Minister of Health and NMA, to the effect that from April 2018, that relevant documents signed by Medical Practitioners in Nigeria, without the NMA stamp, would henceforth be invalid documents, begs for a futile, unconstitutional and illegal caricature of draconian impositions on the medical practitioners in Nigeria.
The powers of the Minister of Health to make orders and give instructions and directives, derive from section 5(1)(b) of the Constitution of the Federal Republic of Nigeria which states that the Executive powers "shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws".
However, it appears that unknown to the Minister, the National Assembly had enacted the Medical and Dental Practitioners Act, which empowered the Medical and Dental Council of Nigeria to make Rules for medical practice, including that involving seal and stamps. By this singular Act of the National Assembly, the powers of the Minister, safeguarded by the last limb of section 5(1)(b) of the Constitution of the Federal Republic of Nigeria becomes defeated and abrogated: the Honourable Minister of Health cannot therefore use his executive fiat to create and ensure compliance on an issue already legislated.
For the avoidance of doubt, the laws the Minister of Health must execute are provided for in the Interpretation Act of Nigeria.
Sections 18 and 37 of the Interpretation Act defined Law and Act.
"Law" means any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law
"Act" means an Act of the National Assembly, whether passed before or after the commencement of this Act, and includes this Act and an instrument made before the first day of October, 1960, in so far as the instrument has effect as an Act
Section 37 goes on to define enactment as "enactment" means "any provision of an Act or subsidiary instrument".
"subsidiary instrument" means "any order, rules, regulations, rules of court or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act".
The Code of Medical Ethics 2008, being a subsidiary instrument, has become part of the laws the Minister must execute, rather than thwart or bypass using executive fiat.
I shall now lay down the provisions of the two subsidiary instruments that are relevant in this discussion as they affect the issue of professional documents, reports, seal and stamp; namely Rule 10 of Rules of Professional Conduct for Legal Practitioners 2007, and its medical corollary, the Rule 33 of the Code of Medical Ethics 2008 for the Medical Practitioners of Nigeria.
Rule 10 states: Seal and Stamp:
10. (1) A lawyer acting in his capacity as a legal practitioner, legal office or adviser of any Governmental department or Ministry of any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “Legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deed letters, memoranda, report, legal opinions or any similar documents.
(3) If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule(1), the document so signed or filed shall be deemed not to have been properly signed or filed.
Rule 33 of the Code of Medical Ethics 2008 states: Part C Code 2008:
33. PROFESSIONAL CERTIFICATES, REPORTS AND OTHER DOCUMENTS
(a) Registered practitioners may from time to time be called upon, and are in certain cases required by law, to give professional certificates, reports and other documents of kindred character, for example under the Workmen's Compensation and Criminal Procedure Acts, in relation to birth, illness or death, for the purpose of excusing attendance in the court or in public or private employment, and for many other purposes. This prerogative of the Medical Profession implies a reposition of great trust in the integrity of practitioners.
Therefore, any practitioner who signs or issues in his professional capacity any certificate, report or other document of kindred character, containing statements which he knows or ought to know to be untrue, misleading or otherwise improper, is liable to disciplinary proceedings. Sick certificates must not be given retrospectively, or beyond the known duration of the illness and the associated period of convalescence. Only the attending registered practitioner can issue certificates to patients.
(b) In general, doctors are expected to exercise care in issuing certificates and kindred documents and should not include in them any statement which the doctor has not taken appropriate steps to verify. Doctors are also advised not to issue certificates excusing a patient from duty in excess of one week except where the practitioner is able to objectively justify longer periods. Such certificates may be renewed if the need arises in the course of regular follow-up care. A doctor shall not issue a false sick or death certificate. He must not acquiesce to, or aid the falsification of, any medical record or document.
It is remarkable that the Rules of Professional Conduct for Legal Practitioners 2007 is the equivalent rule to the Code of Medical Ethics 2008 for the Medical Practitioners. However, as I have canvassed in the foregoing, it is crystalline that there is no such corresponding provision of Rule 10 of the Rules of Professional Conduct for Legal Practitioners 2007 for seal and stamps, in the Code of Medical Ethics 2008 for Medical Practitioners. Through the whole length and breath of the Code of Medical Ethics, there is no single mention of the word "stamp".
Therefore, there is no corresponding provision for the Supreme Court to allude to in the Code of Medical Ethics as she did in 2015 on Rule 10.Thus, if issues of seal and stamps have been relegated and banished to the professional rules and regulations of the enabling Acts, the Medical Practitioners regulatory body has made no Rules in that respect. They thus have nothing to enforce, either by the Minister or the NMA.
Furthmore, those rules are not made by NMA or Minister of Health. No. The rules are made by the Medical and Dental Council of Nigeria, as encapsulated in the Medical and Dental Practitioners Act of the National Assembly of Nigeria.
The powers of the Minister does not extend to enacting Rules of Professional Conduct for medical practitioners.
Section 4 of the Medical and Dental Practitioners Act provided for the Control of the Medical and Dental Council of Nigeria by Minister:
4(1) The Minister may give to the Council directions of a general character or relating generally to particular matters (but not to any individual persons or case) with regard to the exercise by the Council of its functions under this Act and it shall be the duty of the Council to comply with the directions.
(2) Before giving a direction under subsection (1) of this section, the Minister shall serve a copy of the proposed direction on the Council and shall afford the
Council an opportunity of making representations to him with respect to the direction.
(3) The Minister may, after considering any representations made to him in pursuance of subsection (2) of this section, give the direction either without
modifications or with such modifications as appear to him to be appropriate having regard to the representations.
The above powers of the Minister has no connection with making stamps for medical practitioners in Nigeria.
The biblical Genesis of compulsory stamps for doctors in Nigeria cannot be seen to fructify at the biblical Revelation. It is table turned upside down. It lacks the flavour, blessing and sanctions of the law and Constitution of Nigeria, and thus, null and void. This intended compulsion on doctors for stamps can only materialize after an arduous work on the present Code, that must make provisions for stamps. This must be the Genesis of possible legality of the doctors stamp. Any other efforts other than that would be a mere private decoration of documents with stamps that are legally meaningless.
©Awkadigwe Fredrick Ikenna 2018 (MBBS, LLB, MWACS, DSC)
E-mail: awkadigweikenna@yahoo.com
This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author.
© 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 referencing and written approval and license of the author, Ikenna Fredrick Awkadigwe.
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