MEDICAL JURISPRUDENCE IN A DEVELOPING NATION: THE PAST, THE PRESENT AND THE FUTURE: A LECTURE PRESENTED BY MR AWKADIGWE FREDRICK IKENNA (MBBS, LLB, MWACS, DSC): BEING A GUEST LECTURE ON 8TH DECEMBER 2018 AT THE 7TH AGM OF ARD FMC UMUAHIA

OUTLINE
1. Introduction
2. Origin and Development of Medical Jurisprudence
3. Medical Jurisprudence in Developing Nation (with Nigeria as a case study)
4. Essentials of Medical Jurisprudence: autonomy, beneficence, non-malefecience and justice
5. Sources of Medical laws in Nigeria
6. Areas of Medical Jurisprudence
7. Levels of Control in Medical Jurisprudence
8. Foreign medical practices with no obvious legal support in Nigeria
9. Future of Medical Jurisprudence
10. Conclusion


1. INTRODUCTION
The word jurisprudence derives from the Latin term juris prudentia, which means "the study, knowledge, or science of law." In the United States, jurisprudence commonly means the philosophy of law.

Medical Jurisprudence (also known as Legal Medicine or Forensic Law) is the branch of medicine that deals with the application of the principles and knowledge of medicine for both criminal and civil law.

Thus, is medical jurisprudence thus a branch of law or  branch of medicine?

Medical Jurisprudence brings the Medical Practitioners into contact with the law, as he gives evidence in court of law.
In Nigeria, the Medical Profession is concurrently regulated by the same body that regulates the Dental Surgery Profession.

Therefore, Medical Jurisprudence essentially covers medical practice and the practice of Dental Surgery.
However, other Health Care Practitioners are not included in the field of medical jurisprudence.

In this era of increasing litigation, medical practitioners should be grounded in medical jurisprudence.

2. Origin and Development of Medical Jurisprudence:
In 1650, Michiaelis delivered the very first lectures on Legal Medicine, and as early as 1720, professorships of the same were founded by the state of Germany.

France, from 1570 to 1692, enacted laws which, like those of Germany, favored the culture of Legal Medicine; but in 1692, medico-legal offices became hereditary and venal, and Legal Medicine languished until after the French Revolution.
Since 1790, no nation has surpassed France in the culture of medical science; in addition, the judges appoint medical experts, who, since 1803, must be graduates in medicine, and must have attended one course of lectures, and have passed an examination on Legal Medicine, professional chairs of which were established by the state in 1794.

However, French authorities denounce their didactic instruction as insufficient for the education of experts, and declare the appointment of these by the judges, and the lack of skilled medico-legal officials to procure medical evidence, to be most unsatisfactory, and their whole system to be much inferior to the German.

In University of Edinburgh, Dr. Duncan, Sr., in 1801, was the first English speaking lecturer on Forensic Medicine, and his son the first professor, in 1803.

Each of the twenty-three medical colleges reported in England and Scotland in 1875, had a regular teacher devoted to Forensic Medicine; and some of these, at least those at Cambridge, Oxford, Edinburgh, and Dublin, confer a special degree in State Medicine on those applicants only who have already graduated in medicine, and have thereafter satisfactorily pursued this special study.

Important Points in the development of medical jurisprudence

From 1620 to 1722, the authority of the father of medico-legal science was supreme. He devoted chapters to Torture, Sorcery, Prophecy, Miracle, and Immaculate Conception.
During this period doctors gravely discussed whether a woman could be got with child by the devil, or by a dream; and French judges legitimized an infant in a case where the husband had been separated four years from the mother, on the ground that the child owed its paternity to a dream
Doctors taught that grossly deformed infants had a bestial parentage; judges, even in 1769, declared that they had "no inheritable blood" for a "reason too obvious and too shocking to bear a minute discussion.

Doctors taught that grossly deformed infants had a bestial parentage; judges, even in 1769, declared that they had "no inheritable blood" for a "reason too obvious and too shocking to bear a minute discussion.

 Until 1726, it was taught that, in presence of the murderer, his victim's wounds did "open their congeal'd niouths and bleed afresh," and courts accepted the testimony of medical experts to this miraculous bleeding of the corpse. The effect upon a suspected homicide of touching the dead body of his supposed victim, continued to be a legal expedient within the nineteenth century.

 The highest medico-legal authorities taught belief in ghosts, witches, and possession by the devil; and united with the clergy in denouncing all disbelievers thereof as heretics and atheists until 1752.

The "witch-mania" originated with a papal edict in 1484. The last judicial executions for witchcraft were in England, in 1710; Scotland, 1722; Wiirzburg (Germany), 1749; Glarus (Switzerland), 1780.

Modern Medical Jurisprudence.
The factors that led to the overhaul of the confines of the ancient medical jurisprudence included innumerable precious facts have been contributed by every branch of Anatomy, Diagnostics, aided by stethoscope, thermometer, and many other instruments. Obstetrical Jurisprudence which rescued the ignorant superstition, monsters, retarded births, superfcetation, and hermaphrodism. Chemistry, since 1789, when Lavoisier gave it a firm foundation. Knowledge acquired of the nervous system, medical science has influenced society and law to an extent difficult to overestimate.

In 1774, England enacted the first law evincing one touch of pity for the insane who were beaten to stupor to drive out demons.

In addition, there were advances in the statutes, equity and common law.

3. Medical Jurisprudence in Developing Nation (Nigeria).
The Nigerian Legal System (and the legal systems of  most British developing nations) is based on the English legal tradition by virtue of colonization. Some English laws were also directly or indirectly transplanted into Nigeria legal system. English law has a tremendous influence on the Nigerian legal system, and it forms a substantial part of Nigerian law.

Section 32 (1) of the Interpretation Act provides that, the common law of England and the doctrines of equity and the statutes of general application which were in force in England on 1st January, 1900 are applicable in Nigeria.

Medical profession in Nigeria is purely a creation of law
Prior to Independence, it was purely enabled by statutes, common law, doctrine of equity and SOGA, all encapsulating the essentials of medical ethics and Medical laws.

4. The essentials of medical ethics.
Autonomy: patients have the right to make their own informed decisions even if contrary to medical advice.

Beneficence: care be provided with the intent of doing good for the patient.

Non-maleficence:  provide care under the assumption you are not doing harm or minimizing harm to the patient.

Justice: distribution of your care and resources equitably.

5. Sources of Law in Nigeria
International laws.
English law
Nigerian legislations
Delegated legislation
Case law
Customary laws.

Sources of Medical Laws in Nigeria
International laws.
English law
Nigerian legislations
Delegated legislation
Case law
There is no customary law as a source of medical law in Nigeria .

International laws:
Human Rights Charter
Physicians Pledge

English law:
By virtue of Section 32 Interpretation Act:
The common law of England and
The doctrines of equity and
The statutes of general application which were in force in England on 1st January, 1900
These laws can only be applied in Nigeria if there is no Nigerian law on the subject matter
Common law, Doctrine of Equity and SOGA in force in England after 1st January 1900 are only persuasive in Nigeria

Statute of General Application:
The supreme court had reminded the court below not to resort to English law where there is  local law on any issue before the court. See Okoko vs the state 1967 NMLR 189

Also, the supreme court per Mohammed Bello CJN(as he then was) in Idehen v Idehen reiterated that the Wills act of 1837 which was a statute of general application was replaced by the Wills law of western Nigeria in 1959.

Young vs Abina: Here, the west African court of appeal declared the land transfer act 1897 a statute of general application.

This is because it applied to all persons  who died after 1st January 1898. What could be of more general application than that, and it was in force on 1st January 1900.

Nigerian legislation:
1. Constitution of the Federal Republic of Nigeria
2. Act of the National Assembly:
i.  Interpretation Act  
ii. MDPA, NMCA,NHA
iii. RTA,THA
iv.  CRA
vi. Evidence Act
vii. Other statutes eg , CCA, PCA, ACJA
3. Medical laws of states eg Health Laws

Jurisprudencial Relevance:
CFRN: Empowered creation of professions
CFRN: Authorized the making of laws by the Legislature
CFRN: Created actionable rights of citizens
Interpretation Act: Incorporated SOGA etc
MDPA: Created Medical Profession, and regulates the Training and Discipline of Doctors
NMCA: Regulates the training of specialists
NHA: Created the rights of patients and the medical practitioner
RTA: Enhanced the regulation of residency training
CRA: Protected the rights of children
THA: Created the Teaching Hospitals where patients are treated
Evidence Act: Provided for the use of Expert Witnesses
CCA/PCA: Created Medical Crimes
ACJA: Created the procedure for trying offences

Delegated Legislation:
1. Code of Medical Ethics: A subsidiary legislation from MDPA providing for consent, confidentiality, negligence, misconduct etc
2. Medical College Faculty Curricula: A subsidiary legislation from NMCA providing for qualification to become a specialist

Case Law:
1. MEDICAL AND DENTAL PRACTITIONERS DISCIPLINARY TRIBUNAL V. DR. JOHN EMEWULU NICHOLAS OKONKWO: (2001) LPELR-SC.213/1999
2. TEGA ESABUNOR & ANOR. v. DR. TUNDER FAWEYA & ORS: (2008) LPELR-CA/L/226/2003

6. Areas of Medical Jurisprudence:
Qualification
Medical Practice
Serious Professional Misconduct
Negligence
Informed Consent
Confidentiality

Qualification:
Graduation
Housemanship vs Internship
Practicing Fee
Continuing Medical Education (CPD)
Medical Licence

Medical Practice:
Regulated by all the outlined laws and much more
The MDPA and the Code of Medical Ethics regulate how medical practitioners should conduct themselves in their capacity as Medical Practitioners.

The MDPA specified the consequences of a Direction of Serious Misconduct on a medical practitioner.

The guilty medical practitioner could be reprimanded, suspended or struck off the roll

Serious Professional Misconduct: MDPA and Code:
Few categories are mentioned in the Code of Medical Ethics.
The code is not exhaustive.

A code of ethics, no doubt, sets a standard of professional conduct. An infraction of the code may amount to professional misconduct but not every infraction amounts to infamous conduct in the sense in which that term has been used in Allinson v. General Council of Medical Education and Registration.

The expression 'infamous conduct in any professional respect refers to conduct which, being sufficiently related to the pursuit of the profession is such as would reasonably incur the strong reprobation of professional brethren of good repute and competence.

The law provided for penalty to be imposed on a registered person who is adjudged by the disciplinary tribunal to be guilty of serious professional misconduct.

Case Law: Okonkwo v MDCN:

Case commenced from MDCN
Up to Supreme Court
Adult patient and Jehovah's Witness
Patient denied consent for blood transfusion despite advice
Doctor obeyed the patient wish
Patient died
Doctor was acquitted by Supreme Court although found guilty by MDCN

Negligence: MDPA and Code

Duty: The outcome of negligence cases depends on whether the defendant owed a duty to the plaintiff
Breach of Duty
Cause in Fact
Proximate Cause
Damages

Case Law: Tega ESABUNOR & Anor v Dr. Tunder Faweya & Ors:

Blood transfusion
Underage patient
Parent refused blood transfusion
Doctor obtained court order and transfused
Child recovers
From Magistrate Court
To Court of Appeal
Doctor was acquitted because he acted on the Order of Court
There was no damage to ground Negligence

Informed Consent: Rule 19:

Explanations to patients from whom consent is being sought should be simple, concise and unambiguous about expectations.

Where the  patient is under age, (below eighteen years (18) by Nigerian law), or is unconscious, or is in a state of mind constituting a mental impairment, a next-of-kin should stand in.

In the absenceof a next-of-kin, the most senior doctor in the institution can give appropriate directive to preserve life.

In special situations, a court order may need to be procured to enable life-saving procedures be carried out.

In some cases, which may involve surgical procedures that are difficult to reverse or involving removal of organs e.g. sterilization, amputation of limb, etc counseling sessions should be undertaken at a minimum of three (3) sittings to give the patient ample time to take an informed decision before a consent form is signed.

Confidentiality: Rule 9F:

All communications between the patient and the practitioner made in the course of treatment shall be treated in strict confidence by the practitioner and shall not be divulged unless compelled by law or overriding common good or with the consent of the patient.

If a doctor is accused by his patient, he is not precluded from disclosing the truth with respect to the accusation.

The announced intention of a patient to commit a crime is not included within the confidences which the doctor is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened.

7. Levels of Control in Medical Jurisprudence:
Every complaint against a medical practitioner could be criminal ,civil or about gross misconduct.

The civil and criminal complaints go to courts directly.
Civil cases are mostly on Negligence by lawyers or self
The criminal cases are on criminal offences prosecuted by police, AG or by fiat.

The complaints on serious misconduct go to MDCN (The Medical Panel and Medical Tribunal) and appeals lie to the Court of Appeal upwards.

Cases of alleged serious misconduct can be converted to a civil or criminal case by lawyers or corrupt law enforcement agencies in a corrupt judicial system, thereby ineffectively bypassing MDCN.

Examination of Medical Expert:
Medical practitioners can be examined in court either to defend his act or to give evidence concerning the acts of another medical practitioner.

Even before the medical expert is examined in court the adversary will first question him on his qualification and competency to give evidence:Personal Background And Qualifications.

This can impugn on the credibility of the evidence or testimony of the medical expert before the Judge or Medical Panel.

A good lawyer will also read around the subject matter and ask irrelevant questions to portray incompetence

Foreign medical practices with no legal support in Nigeria:
Medical Jurisprudence is jurisdictional.
The scope and extent of Medical Jurisprudence depend on the existing medical laws in the country
Foreign statutory and case laws are only persuasive, and not binding, in Nigeria, until adopted by Nigerian Courts
Some of the practices outside Nigeria that have no binding force in Nigeria include:
Frazier guidelines
Specialists evidence
Gillick Competence
Abortion practices of evidence of two gynaecologists

Future of Medical Jurisprudence:
This could be for the better or for the worse:
Competence vs Negligence: Developed vs Developing nations
Prescription drugs: Doctors directories and Folio Numbers
Medical Certificates vs Existing Medical laws: Full Registration
Reliance on Pathologist Report v Scientists results
Fake drugs vs Medical Negligence
Professional limits and Competences and illegal expansion of professional scopes using subsidiary laws
Perpetual MDCN devoid of Reconstitution
Medical stamp (Compare Lawyer Stamp)
NMA , MDCN and Discipline of Doctors (Compare NBA)
The Mark of the Beast that all Doctors cannot sell

Conclusion.
The medical practitioner must practice medicine according to the medical laws in his jurisdiction. Proper and adequate record keeping is monumental.

The failure of the medical practitioner to comply with the relevant laws may lead to massive consequences. These consequences may ultimately end in the Court room, and the medical practitioner will have to be called upon to give evidence; or prove that there was no serious misconduct, crime or negligence.

A good knowledge of medical jurisprudence can be a protective armor, a sword, a shield or a saving grace, especially in this era of increasing medical litigation.

End.
For more on medical jurisprudence, visit:

https://awkadigwemedicolegals.blogspot.com


Thank you for listening.



In addition to the loaded lecture areas like discipline, licencing, negligence and criminal liability, some of the questions that equally agitated the minds of participants as regards infamous conduct included the following:

1. Disclosure of HIV status to patient relatives
2. How to obtain court order to override refusal of consent
3. Effects of discharge against medical advice
4. BTL without consent in uterine rupture
5. EBT without parental consent
6. Pre-prepared court order
7. Withdrawal of parental rights
8. Haemodialysis of anaemic Jehovah's Witnesses
9. Transfusion without consent
10. Effect of medical power of attorney not to transfuse
11. Consent requirement in emergency situation
12. Consent for permanent procedures


Citation on authorities

Statutes

1. Constitution of the Federal Republic of Nigeria 1999 as amended
2. Act of the National Assembly:
i.  Interpretation Act  
ii. Medical and Dental Practitioners Act
iii. National Medical College Act
iv. National Health Act
v. Residency Training Act
vi. Teaching Hospital Act
vii.  Child Rights Act
vi. Evidence Act
vii. Other statutes eg  Criminal Code Act etc
3. Medical laws of states eg Health Laws

Subsidiary legislations

1. Code of Medical Ethics for Medical Practitioners
2.  Faculty Curricula of National Postgraduate Medical College of Nigeria

Case laws

1. Medical and Dental Practitioners Disciplinary Tribunal v. Dr. John EMEWULU Nicholas Okonkwo: (2001) LPELR-SC.213/1999
2. Tega ESABUNOR & Anor. v. Dr. Tunder Faweya & Ors: (2008) LPELR-CA/L/226/2003

ARTICLES

Stanford Emerson Chaille, Origin and Progress of Medical Jurisprudence 1776-1876, 40 J. Crim. L. & Criminology 397 (1949-1950)

©Awkadigwe Fredrick Ikenna
MBBS, LLB, MWACS, DSC.
awkadigweikenna@gmail.com
08039555380