Sunday 2 December 2018

THE GROSS IMPUNITY OF MDCN AND THE ILLEGALITIES OF THE NMA BUILDING LEVY

   

What is NMA Building Levy doing on MDCN portal?

A cursory look at the Medical and Dental Council of Nigeria (MDCN) practitioners portal will quickly show at the bottom an area for the payment of Nigeria Medical Association (NMA) Building Levy. What quickly comes to mind is the fathomable link between MDCN and NMA to the extent that MDCN has the collection of NMA levy on its website.

It must be stated from the outset of this article that MDCN and NMA have no legal connection whatsoever as to warrant the use of MDCN portal for the collection of NMA building levy or any other levies whatsoever.

The MDCN is a statutory regulatory body established by the National Assembly of Nigeria. It is a creation of the Act of Parliament as enabled by the provisions of the Constitution of Nigeria at its Item 49 of the Second Schedule. On the other hand, the NMA is a private association of medical practitioners registered under the relevant registration law.

The high point in the difference between NMA and MDCN is that NMA is a voluntary organization with an opt-out approach of membership that is common among almost all the professional associations in Nigeria. NMA therefore cannot compel all the doctors in Nigeria to be members as there is no statutory or legal flavour to such endeavors. It is instructive that where a law makes the membership of NMA compulsory, as is found in ESUT Teaching Hospital law for the appointment as a CMD, then compulsory membership of NMA invariably becomes legal for that purpose. In Nigeria, however, compulsory membership of NMA has no legality in it as the association is not statutorily created. Membership is nourished by the desire of members to come together and guarantee their welfare.

On the other hand, MDCN is a statutory creation. To practice as a medical practitioner, a doctor of medicine must be licensed to practice by MDCN. This is clearly provided for in section one of the Medical and Dental Practitioners Act (MDPA). It is thus a compulsory medical ombudsman that every medical practitioner shall comply with its valid regulation ambits to be able to lawfully practice medicine in Nigeria.

Section 1 of Medical and Dental Practitioners Act (MDPA) : Establishment and functions of the Medical and Dental Council of Nigeria

(1) There is hereby established a body to be known as the Medical and Dental Council of Nigeria (hereafter in this Act referred to as *the Council) which shall be a body corporate with perpetual succession and a common seal and may sue or be sued in its corporate name.

(2) The Council shall have responsibility for :-
(a) determining the standards of knowledge and skill to be attained by persons seeking to become members of the medical or dental profession and reviewing those standards from time to time as circumstances may permit;

(b) Securing in accordance with the provisions of this Act, the establishment and maintenance of registers of persons entitled to practice as members of the medical or dental profession and the publication from time to time of lists of those persons;

(c) Reviewing and preparing from time to time, a statement as to the code of conduct which the Council considers desirable for the practice of the professions in Nigeria

(d) supervising and controlling the practice of homeopathy and other forms of alternative medicine;

(e) making regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histoopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology, and(1991 No. 78)

(f) performing the other functions conferred on the Council by this Act.

It is instructive to note that the law did not give any functions to MDCN with regard to regulation of NMA or the involvement in NMA activities. The powers of MDCN is also limited to functions as delegated to it by the enabling law. It is trite and fundamental that a statutory body is strictly constrained in functions to that expressly deposed to it. Any voyage into precincts alien to its prerogatives is illegal, unconstitutional and reckless.

It is crystalline that NMA and MDCN have no connection whatsoever in their duties and scopes. While MDCN is concerned with medical regulation and licenses to practice medicine in Nigeria, NMA is concerned with the welfare concerns of its members and the society in which they work. That is the reason the NMA is only mentioned twice in the whole length and breath of MDPA; at the membership section of the Act, and at the distribution section of the practising license part of the Act. In fact, the Act recognized two different associations viz the Nigeria Medical Association and the Nigerian Dental Association. This is in contradistinction to the current trend and happeningstands in Nigeria today where dental surgeons are muddled and incorporated into NMA. This trend too lacks legal flavour.

Section 2 of MDPA:  Composition of the Council

(3) The Council shall consist of a Chairman to be appointed by the President, and the following other members, that is –

(a) two representatives of the Federal Ministry of Health both of whom shall be fully registered medical practitioners or dental surgeons;

(b) the Chief Medical Officer (or however called) of the Ministry of Health of each State of the Federation;

(c) one representative of the Armed Forces Medical Services.

(d) One representative of the National Post-Graduate Medical College ;

(e) Three representatives of Colleges or Faculties of Medicine of Universities in the Country to be appointed by the Minister in rotation from among the provosts or deans of such Colleges or faculties, however so that no two of such persons shall be from the same University;

(f) Two representatives of the medical and eental professions to be appointed by the Minister;

(g) Eleven members of which nine shall be from the Nigeria Medical Association and two shall be from the Nigerian Dental Association; (1992 No. 78)

(h) one representative of alternative medicine practitioners;(1992 No. 78)

 (i) two pathologists to be appointed by the National Post-Graduate Medical College to represent the health zonal distributors, teaching and specialists hospitals in Nigeria . (92 No. 78.)

(2) The provisions of the First Schedule to this Act shall have effect with respect to the qualifications and tenure of office of members of the Council, the procedure of the Council and the other matters therein mentioned.(First Schedule.)

It is also very interesting to note that the powers of MDCN is drastically limited by subsection two of section three of the MDPA.

Section 3 of MDPA : Powers of the Council

(1) Subject to subsection (2) of this section and to any directions given to the Council under this Act the Council shall have power to do anything which in its opinion is calculated to facilitate the carrying out of its activities under this Act.

(2) The Council shall, with the prior consent of the Minister, have power to borrow money, acquire or dispose of any property and shall have power to pay remuneration (including pensions), allowances or expenses to any member, officer or servant of the Council or to any other person in accordance with scales approved by the Council.

The main crux of this article lies in Section 14 of the MDPA. This is the section dealing with license and renewal of license by medical practitioners.

14. Practising Fees
(1) Subject to subsection (2) of this section, no medical practitioner or dental surgeon shall practice as a medical practitioner or dental surgeon as the case may be, in any year unless he has paid to the Council in respect of that year the appropriate practicing fees prescribed hereunder---

a. in the case of a medical practitioner or dental surgeon of not less than 10 years standing – N100.00

b. in the case of medical practitioner or dental surgeon of less than 10 years standing – N50.00;

 c. in the case of a House Officer – N25.00 and

 d. in the case of a medical practitioner or dental surgeon with limited registration – N200.00

(2) A medical practitioner or dental surgeon during his service year in the National Youth Service Corps Scheme shall be exempted from the payment of practicing fees.

(3) The Council may, with the approval of the Minister from time to time, vary the practicing fees prescribed under subsection (1) of this section.

(4) The Council shall share the aggregate amount collected as practicing fees during the year as follows –

 i. 70 per cent to the Nigeria Medical Association; and

 ii. 30 per cent to the Medical and Dental Council of Nigeria.

(5) Any medical practitioner or dental surgeon who in respect of any year and without paying the prescribed practicing fees practices as such shall be guilty of an offence and shall be liable on conviction to;

(a) in the case of a first offence, to a fine of twice the prescribed practicing fees; and

(b) in the case of a second or subsequent offence, to a fine of not less than ten times the prescribed practicing fee, and if the medical practitioner or dental surgeon is in the employment of any person, that person shall also be guilty of an offence and punished in like manner as the medical practitioner or dental surgeon unless he proves that the failure to pay the practicing fee was without his knowledge, consent or connivance.

The renewal of license and granting of validity to practice in any year are neither dependent on NMA nor subjected to any other conditions related to NMA. Issues related to NMA building, rather than MDCN building, are therefore highfalutin to say the least. It is an extortion devoid of any legal sanction. It is an unlawful restriction and violation of rights of individuals to engage in their training and qualified professional practice, by a regulatory body that should protect the practitioners from illegal interferences of greedy aliens.

In conclusion, it is obvious that NMA building levy has no connection with the functions statutorily allocated to MDCN. The appearance of NMA building levy on MDCN portal is not only illegal and reckless, but also brazen to the primary function of MDCN.

A predictable possible further extension of this impunity, for the use of the mandatory medical regulatory body to collect building levies of a voluntary medical association, by making the payments of the NMA building levy (or any NMA levy whatsoever) a precondition for the payment of the mandatory professional annual practicing license of the medical practitioners in Nigeria, would not only trigger massive litigations, but may eventually open the eyes of doctors to the voluntary possibility of opting out of the popular medical association, and sink NMA.

What is NMA Building Levy doing on MDCN portal? I ask again!

All hope is not lost brethren. The key word in our law is "payment" as the MDPA stated clearly in Section 14 thus:

14. Practising Fees
(1) Subject to subsection (2) of this section, no medical practitioner or dental surgeon shall practice as a medical practitioner or dental surgeon as the case may be, in any year unless he has "paid" to the Council in respect of that year the appropriate practicing fees prescribed hereunder.

The only condition for licensing to practice medicine in Nigeria are two only: payment of practising fee, and continuing medical education as contained in Rule 28 of the Rules of Medical Ethics:

"Rule 28. PROFESSIONALNEGLIGENCE

Medical practitioners and dental surgeons owe a duty of care to their patients in every professional relationship. The particular skill which training and eventual recognition and registration on a practitioner, is to be exercised in a manner expected of any practitioner or any other member of the professions of his experience and status. It is required that a practitioner upgrades his skill as best as possible in the light
of advancing knowledge in the profession. To this end, regular participation in programmes of continuing medical education is a necessary condition for the practitioner to remain relevant in practice and to achieve renewal of his practising licence based on the guidelines that are released by the Council from time to time.

Apractitioner must see and attend to all patients on admission under his care, as frequently as their conditions demand.
In an emergency, for instance at the scene of a road traffic accident, a doctor passing by is under no inherent duty to stop and render first aid to the victims; but if he decides to stop and render care, he is bound by the ethics to exercise a
degree of reasonable care, that is, to do everything that a competent and reasonable registered practitioner would do in the circumstance".


It is absolutely clear that only these two conditions are recognized by law. Building levy is a nonstarter. Therefore, go and pay for your practising license through remita. Once you do that, you have beaten the statutory deadline. Whether MDCN validates your payment is immaterial as you have your evidence of payment which is the only thing that the law requires. Payment for practising fee bypasses the bogus NMA Building Levy. Keep your CPD certificate and your remita receipt in a safe place.

This is without prejudice to the planned commencement of legal actions against NMA and MDCN in general and their officials personally for extortion, impediment of professional practice, and the violation of the provisions of Nigerian laws and MDPA. Medical profession cannot continue like this in this country anymore.

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

4 comments:

  1. Please what can I do if I have already made the payment

    ReplyDelete
  2. https://t.me/joinchat/IopRcFlaWwMbYDDyNvTxHg

    ReplyDelete
  3. Hi! This is kind of off topic but I need some guidance from an established blog. Is it very hard to set up your own blog? I’m not very
    technical but I can figure things out pretty fast. I’m thinking about making my own but I’m not sure where to start.
    Do you have any ideas or suggestions? Thanks

    ReplyDelete
  4. Very excited to know that one of us, knowledgeable in, and educated as a lawyer has come to our rescue at a .time in this country when impunity has been taken to another level. Imagine what doctors are doing to themselves. MDCN and NMA must be held accountable. Thank you so very much Dr Awkadigwe May the Lord continue to guide and protect you.

    ReplyDelete