MDCN AND THE PATIENT'S APOCRYPHAL FINANCIAL REMEDY

This Article is an elucidation of the rampant misconceptions of what the Medical and Dental Council of Nigeria (MDCN) stands for in view of the desires and yearnings of aggrieved patients and their relatives in clinical settings.

A patient or his relatives who feel aggrieved by the conduct of the medical practitioner or the hospital where the patient is said to have been mismanaged usually find it difficult to know what to do to have requisite remedy.

The doctor is not left out in this confusion. He is uncertain about where the matter would eventually land him. The hospital management joins in the medley as it searches for a way out of the patient's complaints on one hand and the doctor's position on the other hand.

Then comes the MDCN which caps the Master Mayhem by coming into the matter with scarce grasp of its own limited roles in the whole chaos.

This Article is therefore an elucidation of the unfortunate brief limits of the different players in this constant recurrent occurrences in our health institutions. After going through this Article it will be clear to the reader that we have a long way to go in this problem. This Article will help the various stakeholders to understand where to seek remedy when there is a problem.

Two Scenarios will make the elucidation better.

Scenario One:
A medical practitioner who arrived late to work went to the emergency room where his attention was urgently needed. Without confirming the blood pressure of the unconscious patient that was being attended to by other health personnel, he infused normal saline rapidly in a resuscitation effort. The patient died thirty minutes later. It was discovered that the patient died of complications of hypertension. The patient relatives were concerned that the management protocols of the medical practitioner caused the death of their relative. The doctor thereafter placed the signature of another doctor on the documentations.

Scenario Two:
A laboratory scientist had been holding himself out as a medical practitioner by conducting tests on patients and giving anaemic patients blood. A patient died under his treatment from transfusion reaction. The patient relatives suddenly discovered that the scientist was not in fact a medical practitioner and are concerned that his intervention was the cause of death of their relative.

In reality, a licensed medical practitioner can do one or more of the following in the course of his work:
1. He can manage a patient appropriately one way or the other irrespective of patient outcome
2. He can make minor mistakes or have minor oversights irrespective of outcome
3. He can be negligent in his professional capacity
4. He can be negligent in his civil service capacity
5. He can misconduct himself seriously in his professional capacity
6. He can also misconduct himself seriously in his civil service capacity
7. He can commit a criminal offence including forgery, battery, murder or manslaughter
8. What about the medical quack in Scenario Two? How is he going to be taken care of when the patient suffers injury or dies?


Now, this is the gist of the whole story. The MDCN plays a part in one out of the eight points listed above.

MDCN has no role whatsoever in the remaining seven points listed above. The whole expectations in the hullabaloo about going to MDCN or writing MDCN when situations in the above two scenarios painted, is therefore in fact miniscule.

A medical practitioner, in the course of his work, can be found to have made mistakes which are not serious in his professional capacity. These minor mistakes are not punishable anywhere. However, where the mistake is serious, a DIRECTION can be given accordingly by the MDCN in three ways namely reprimand, suspension or de-registration.

The Directions of the MDCN has no direct benefit to the patients or their relatives who bore the brunt of the alleged mismanagement. Therefore, recourse to MDCN is not a good route for remedy for the patient or their relatives who are aggrieved in the course of their clinical management. This is because MDCN has no power whatsoever to award damages or restitution to an injured patient. The route open to any acruable remedy is the Nigerian Courts in their civil or criminal proceedings.

The high point therefore is that a medical practitioner who comes in contact with a patient is a candidate for civil or criminal litigation in liability or breach.

Any medical practitioner whose patient dies in his care can be arrested for murder, if the law enforcement authorities  have reasonable suspicion that the medical practitioner murdered the patient. The mere admission of a dying patient places the doctor in an accusatory way if the patient then dies under his care. No law in Nigeria protects a doctor specially for this accusation different from the protection afforded every other persons under the general laws.

Having said this, I shall clear up the points listed above.

The patient or his relatives can lodge complaints against the doctor with the police or bring a suit within the jurisdiction of the Courts. This is independent of whatever the MDCN or hospital management may be doing concerning the matter. When this happens, the doctor is required to answer. If it eventually turns out to be false accusation, the doctor has no special remedy different from those available to the general population that are accused wrongly.

The hospital management may call the doctor to hospital disciplinary committee which only inquires into civil service components of the doctor's dereliction of duty as a civil servant. The hospital inquiry does not extend to the professional capacities failings of the medical practitioner. The hospital management could also hand the doctor over to the police, if it is a criminal matter, or to MDCN if it is a professional conduct matter, as the case may be.

On the other hand, the doctor has no person to complain to in all these. He has no special legal protection whatsoever. The law officers and court bring their sentiments to bear. The protection under the common law and equity appears to have been overtaken by the numerous statutes on right to life. The medical practitioner is the hunted.

To elucidate more on the right to life, section 33 and 45 of the Constitution of Nigeria 1999 as amended can be resorted to:

33. (1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –

(a) for the defence of any person from unlawful violence or for the defence of property:

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(c) for the purpose of suppressing a riot, insurrection or mutiny.

45. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a) in the interest of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedom or other persons

(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:

Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.

(3) In this section, a " period of emergency" means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.

From the foregoing, it is clear that death from medical treatment is not included in the derogations to right to life in Nigeria. Even the emergency contemplated by the Constitution of Nigeria does not include the medical emergency we all know. Medical deaths are therefore not protected by the Constitution of Nigeria. Medical statutes which are inferior to the Constitution are also not protective of the medical practitioner in cases of medical deaths. All the protections might be mere presumptions of the medical practitioners. Even the provisions of section 32 of the Interpretation Act only made reference to Common Law, Doctrines of Equity and Statute of General Application which are far below in the hierarchy of laws in Nigeria. These laws are far away in England in the year 1900. This is where a doctor accused of manslaughter or murder of a patient would have to travel to, for him to defend himself. If he refuses to take a voyage to 1900 he could be treated as a common criminal. Even MDCN which legal mandate includes the enactment of subsidiary Legislations for medical practice is yet to protect the medical practitioner from this literary murder.

Furthermore, what can constitute a criminal offence in medical practice goes far beyond. It includes manslaughter, murder, grievous harm, forgery, conspiracy, corrupt practices, and other criminal offences covered by the criminal laws in Nigeria. When a medical practitioner commits any of these offences, neither MDCN nor the hospital management has the right to try the medical practitioner. The hospital management can only suspend or sack the misconducting civil servant while MDCN can only suspend or de-register the practitioner. Both MDCN and hospital authorities have no power of prosecution and conviction of the misconducting medical practitioner or award damages to the aggrieved patient. The aggrieved person must go to the right law enforcement authorities to report for prosecution or the Courts for damages. MDCN can only step in to de-register, after the court has convicted the medical practitioner. This is because MDCN is not equipped to try criminal matters.

According section 16(1) Medical and Dental Practitioners Act:

16. Penalties for professional misconduct, etc.
(1) Where ---
(a) a registered person is adjudged by the Disciplinary Tribunal to be guilty of infamous conduct in any professional respect; or
(b) a registered person is convicted, by any Court of Law or Tribunal in Nigeria or elsewhere having power to impose imprisonment, for an offence (whether or not an offence punishable with imprisonment) which in the opinion of the Disciplinary Tribunal is incompatible with the status of a medical practitioner or dental surgeon, as the case may be; or
(c) the Disciplinary Tribunal is satisfied that the name of any person has been fraudulently registered, the Disciplinary Tribunal may, if it thinks fit, give any of the directions specified in subsection (2) of this section.

From the foregoing, it may appear that only criminal convictions can pass the test for court-induced medical disciplinary measures against a medical practitioner by MDCN. However, a closer look at the relationship between infamous act and medical negligence may be blurred. The major difference between the two is that while negligence is tried by courts and amenable to the award of damages; infamous act is the exclusive prerogative of MDCN with no iota of damages to the aggrieved party. However, medical negligence may constitute infamous conduct; just as infamous conduct without ascertainable damage to patient will fail as medical negligence.

Furthermore, what may constitute negligence in medical practice include any damage from medical harm which resulted from breach of duty of care owed the patient. Thus, a medical practitioner is liable in negligence where he refuses to undertake the only medical line of treatment for a patient who is ready and willing to follow suit, resulting in injury and damage. Only the aggrieved person can take this kind of question up in the court of law for remedy. MDCN is not cloaked to do that because it is not equipped to try civil matters. However, MDCN can also step in to de-register the medical practitioner after he has been found liable in negligence of such magnitude that it could be quantified as an infamous act.

The medical quack in Scenario Two above is neither a case for the NMA, MDCN nor is it a case for medical practitioners. The offences under section 17 Medical and Dental Practitioners Act is explicit.

 17. Offences and Penalties
(1) Subject to subsections (6) and (7) of this section, if any person who is not a registered medical practitioner –
(a) for or in expectation of reward, practices or holds himself out to practice as a medical practitioner; or
(b) takes or uses the title of physician, surgeon, doctor or licentiate of medicine, medical practitioner or apothecary; or
(c) without reasonable excuse takes or uses any name, title addition or description implying that he is authorized by law to practice as a medical practitioner.he shall be guilty of an offence.

 (2) Subject to subsections (6) and (7) of this section, if any person who is not a registered dental surgeon---
(a) for or in expectation of reward, practices or holds himself out to practice as a dental surgeon; or
(b) takes or uses the title of dental surgeon, dentist or dentalpractitioner, or
(c) without reasonable excuse takes or uses any name, title, addition or description implying that he is authorized by law to practice as a dentist, he shall be guilty of an offence under this section.

The above subsections clearly made quackery a criminal offence. This simplistically means that only Attorney General and law enforcement authorities can prosecute quacks. The legal implication is that MDCN, not being a law enforcement authority, and doctors are excluded from dabbling into the prosecution of quacks, save by fiat. They can only act as informants to Attorney General or Police who may or may not prosecute after all. Thus, the antiquackery wings of NMA and MDCN are mere toothless bulldogs.

Furthermore, even offence of not paying for Practising Fee is not entertained by MDCN.

Section 14(5) of the Medical and Dental Council Act states:

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 penalty for not paying for the Practising Fee is paid to government after convictions in court, not at MDCN.

In summary, MDCN does not convict medical practitioners. It does not award damages to patients for mismanagement. In fact, MDCN has no practical recompense-benefits for the aggrieved patients or their relatives. A patient or patient relatives that take the option of visiting MDCN rather than court or law enforcement authorities when aggrieved, seeks apocryphal remedies. They have simply sought for medical erudition rather than remedy.

©Awkadigwe Fredrick Ikenna
awkadigweikenna@gmail.com
08039555380
01 January 2019