MEDICAL LABORATORIES ARE TOTALLY DIFFERENT FROM PATHOLOGY
The long titles of both enactments are necessarily instructive. The long title of MLSCNA declares : MEDICAL LABORATORY SCIENCE COUNCIL OF NIGERIA ACT: AN ACT TO ESTABLISH THE MEDICAL LABORATORY SCIENCE COUNCIL OF NIGERIA, REPEAL THE INSTITUTE OF MEDICAL LABORATORY TECHNOLOGY, ACT CAP. I14 LAWS OF THE
FEDERATION OF NIGERIA 2004, AND FOR RELATED MATTERS While the long title of MDCNA declares : MEDICAL AND DENTAL PRACTITIONERS ACT:
An Act to establish the Medical and Dental Council of Nigeria for the registration of medical practitioners and dental surgeons and to provide for a Disciplinary Tribunal for the discipline of members. From the above, if MLSCNA was to herald innovation in laboratory practice and regulations the long title of the Act would have carried it as a banner. Therefore it is deductible that legislature did not intend that the later Act should do violence to the existing MDCNA.
Further, It must be noted that the MDCN ACT used the phrase REGULATIONS FOR THE OPERATION OF CLINICAL LABORATORY PRACTICE while MLSCN ACT used the phrase REGULATE THE PRACTICE OF MEDICAL LABORATORY SCIENCE and REGULATE MEDICAL LABORATORIES. Here lies the DIFFERENCE!!!!
While I may not go into details as to the DIFFERENCE between CLINICAL LABORATORY PRACTICE and MEDICAL LABORATORY PRACTICE and SCIENCE, suffice it to say that legislature and draftsmen of the Acts have meticulously considered the meaning and effects of these terms before employing them to describe the intended jurisdictions of the two Councils and Acts. While it may appear inelegant to those who may not comprehend the beauty and wisdom of legislature to permit MDCN to embark on the making of regulations for the operation of clinical laboratory practice in the field of Pathology which includes Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology; and at the same time permitting MLSCNA to inspect, regulate and accredit medical laboratories as well as regulate the practice of Medical Laboratory Science in Nigeria, yet, it is still within the ambits of a proper legislation for duties and powers to be assigned to corporate bodies to effect changes in a necessarily related endeavors as critical as medical practice and laboratories.
The latter provision of MLSCNA did not make the above part of the assigned powers and authority an exclusive preserve of MLSCN. THEREFORE, THE CORRECT PRINCIPLE OF LAW TO ADOPT IS: EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS.
That is to say that when one or more things of a class are expressly mentioned others of the same class are excluded. Thus , those areas expressly mentioned in MDCNA, viz : 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; shall be excluded from the powers and authority dispatched to MLSCN, notwithstanding that the later section 4 MLSCNA was not subjected to section 1 MDCNA because the two Acts are not in conflict and yet they are equal in hierarchy.
Secondly, the two Acts referred to two different things namely clinical laboratory and medical laboratory. MDPA never gave doctors charge over medical laboratory. MLSCA never gave scientists the power over clinical laboratory. Therefore the question of conflict and concession do not arise in any way.
Awkadigwe F. I. ©Awkadigwe F. I., March 2016.
Episode 2.
THE EXTENT OF POWERS GRANTED BY MLSCNA
I think that the wrong impression of what Medicine ceded to other professionals does not only affect the nonmedical professionals; it also has affected an average medical doctor, and indeed the more than average ones too.
The general notion amongst the non-medical professionals and some members of the public is that a physician is a mere medical traffic warden. He stays in his office and just directs patients to the laboratory, where diagnosis is made for him. He then directs the patient afterwards to the pharmacist who dishes the drugs to the patient. For those patients who need admission, the doctor directs them to the nurses in the ward. Hurrah!!!
If this is the work of a doctor, then why do we really need to study medicine? Why do we need residency training in medical profession?
It is now all very clear. The average patient sees the doctor as a medical traffic warden. The doctor's job could actually be undertaken by any average human who can direct medical traffic. Look, the doctor has ceded all his functions and duties to the laboratory scientist, who does the tests and makes the diagnosis for him; the pharmacist who treats the patient for him; and the nurses who take care of the patients in the ward for him. The doctor is the little brat who does practically nothing but paid so much. Without him, medical practice can still go on. After all his jobs have been taken over.
The significance of this duty ceding is not so prominent among the pharmacists and nurses as it is prominent with the laboratory scientists. This is because we are yet to witness a pharmacist who asks the doctor to just give him the diagnosis and leave for him the drug prescription. We are also yet to see that nurse that would tell the doctor to just admit the patient and leave the rest to her management. But for the laboratory scientist, it is all twisted!!! He wants to see the patient, take the vital signs, investigate him and prescribe concoctions, with all manner of brazen impunity. He is not even aware that medical laboratory science is regulated by law, and that the extent of what a scientist can do is circumscribed in the law.
The medical laboratory scientist therefore sees the work of a doctor as highly dispensable, as he, the medical laboratory scientist, could wield stethoscope, do investigation tests and prescribe drugs for patients. He prescribes drugs which his friend pharmacist is readily waiting to dish out. In fact, most laboratory scientists now annex a pharmacy shop. Sometimes in fact, a pharmacist or patent medicine dealer (PMD ) annexes a medical laboratory. The sole-proprietor laboratory scientist or Pharmacist/PMD, who may have acquired a PhD in medical laboratory science or Pharmacy , and who thus sports the title of Dr, furnishes a consulting room where he has a photograph of himself, and the title of Dr broadly written on it. He goes on ahead with impunity to impersonate and parade himself as a medical practitioner. He assumes consultations, referring patients to his largely employee laboratory technicians who do the table work for him. He is then the consulting doctor while the technicians become his scientists. Patients line up waiting to see doctor who offers them "free" consultations.
The question has always been, TO WHAT EXTENT HAS MEDICINE CEDED ITS FUNCTIONS TO OTHER PROFESSIONALS IN NIGERIA?
The answers to this simple question can only be found in the laws creating medical practice, laboratory practice, nursing practice, pharmacy practice and veterinary medicine in Nigeria.
It must be noted that IN NO PLACE DID OUR LAWS CEDE THE MANAGEMENT OF A PATIENT IN NIGERIA TO ANY OTHER PROFESSIONAL THAN THE PHYSICIAN.
Every other paramedical personnel comes into patient care according as the physician's prescription and directions, as the head of the team. These practices have found let in the different protocols of patient management in hospitals and clinics as approved by MDCN in its statutory powers of medical practice regulations.
A better statutory appreciation of the duty of a medical doctor can be found in a corollary provisions of section 20 of the Veterinary Surgeons Act 1969. This Act, unlike MDPA, and like MLSCN Act, circumscribed veterinary surgery practice in Nigeria. It states thus:
"Veterinary Surgery" means:
"The art and science of veterinary surgery and medicine and, without prejudice to the generality of the foregoing, shall be taken to include-
(a) The diagnosis of diseases in, and injuries to, animals, INCLUDING TESTS PERFORMED ON ANIMALS for diagnostic purposes;
b. The giving of advice based upon such diagnosis;
c. The medical or surgical treatment of animals; and
d. The performance of surgical operations on animals."
Translocating this on the doctor and his patients, it just strengthens the universal proclivity of medical practice that it is the doctor (depending on specialty) who sees the patient, it is the doctor (depending on specialty) who does all the tests on the patient, it is the doctor depending on the specialty) who makes the diagnosis, determines what should be done to the patient on admission on day to day basis, and it is the doctor (depending on the specialty) who determines the drugs to be administered, and in fact administers them to the patient. No other paramedical personnel does those for the doctor, and the doctor has not ceded those duties to any usurper of functions whatsoever.
We must always note that the duty given to the paramedical personnel in patients management is still remote from any proximate contact with the patient. In fact, only mainly the nurses are permitted by law to have a direct contact with the patient. While the laboratory scientists help the doctor with the laboratory sciences and other sundries, the pathologist applies those sciences to the patient in the pathologist's clinical laboratory. While the pharmacist/pharmacologists help the doctor in producing the drugs and other sundries, it is still only the doctor that can prescribe and administer those drugs and apply them to the patient in regimens considered by him to be the optimal. While the nurses take care of the patient in the Wards and do other sundries, it is still only the doctor that gives instructions as to what must be done by the nurses to the patient.
The work of a pharmacists in hospitals in Nigeria starts from and ends with a prescription issued by the doctor. The current trend where the pharmacist questions and endeavors to take history of a patient, uses stethoscope and sphigmomanometer to impress the patient and thereafter dishes out prescription drugs without doctors prescriptions, is not only infamous and abominable, it is also objectionable and actionable.
The work of the nurses in hospitals in Nigeria starts and ends with doctor's prescriptions on the chart.
The work of the laboratory scientists in the hospital/clinical laboratories in Nigeria starts and ends with analysis of specimens sent to him by the doctor or the doctor's agent.
According to MLSCN Act at its section 29:
Medical Laboratory Science
(a) Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research; and
(b) includes medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativeytology parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council.
I have repeatedly argued in other fora that the simple import of this provision is that medical laboratory practice has become circumscribed by law; that any other scientist who practises beyond this boundary has become an impostor; that the conjunctives used by Legislature in this section has depicted, and indeed has limited, medical laboratory practice to a production and research outfit, only to be practiced in production and research centers, and not as part of hospital/clinical patient management.
It simply means that all the powers and duties illegally allocated to themselves by the laboratory scientists qualify as punishable impersonation under MDPA. Such punishable impersonations include:
1. The coming in physical contact with patients instead of hunting for human and animal samples
2. The collection of samples (blood, tissues or excreta) from patients either by invasive or noninvasive means
3. Use of stethoscope and sphigmomanometer to check patients, and questioning or clerking of patients
4. Prescription of drugs to the ignorant patients based on illegal laboratory results
5. Sending of such illegal results directly to physicians to act on, in the management of patients without a pathologist's endorsement, and
6. Operating a private pathology (clinical) laboratories in towns (under the illegal cover of medical laboratory) and cities without the superintendent pathologist. Those and many more are the illegal acts of some of the laboratory scientists in Nigeria.
Those acts directly violate the extent of powers granted members of that profession by their enabling law which is MLSCN Act. Even where a medical laboratory adjoins a hospital [ie those cases where the research center is attached to a hospital; unlike a pathology (clinical) laboratory which is part and parcel of a hospital], the laboratory scientist is still expected by law to go cap in hand for samples which of necessity comes from the clinicians, being the only personnel empowered by law to take samples from patients.
Medical laboratory practice is not the same as clinical laboratory (pathology) practice:
1. While medical laboratory practice is a research-oriented and production practice, clinical laboratory practice (ie pathology ) is an APPLIED laboratory practice. In other words, medical laboratory practice feeds into clinical laboratory practice, the same way biology feeds into applied biology;
2. Medical laboratory practice is the building block of clinical laboratory practice as the aim of the profession is to manufacture materials and equipment used in clinical as well as veterinary surgery laboratories;
3. Medical laboratory practice is not practised in the hospital but in equipment production, manufacturing and research centers/laboratories while clinical laboratory practice is hospital based;
4. Medical laboratory practice is a practice reserved for medical laboratory scientists while clinical laboratory practice is a reserve of the pathologists;
5. Medical laboratory scientists are employed in clinical laboratories not for the practice of medical laboratory science simpliciter, but for the assistance of the pathologist in the conduct of human sample analysis for the clinical laboratory practitioners (pathologists) who have many more specialized functions to perform in the pathology laboratories, using the readily available medical laboratory scientists that have been incidentally trained, based on their academic curriculum, on human sample analysis, and have also undergone clinical laboratory internships;
6. Medical laboratory practice is not just for human sample analysis, rather it involves medical laboratory functions, including animal sample analysis for equipment and reagents production, which the the scientists are statutorily and specifically trained for; while clinical laboratory practice is not just human sample analysis as it goes far beyond that, including interpretation of analysis results and matching the interpretation with the clinical picture of the instant patient.
7. Medical and Dental Practitioners Act did not make any provisions for Medical Laboratory Practice. It only provided for clinical laboratory. This means that medical laboratory practice was unknown to law in Nigeria before the year 2003.
8. This means that medical laboratory was a novel introduction created for a totally new purpose unknown to laboratory practice in Nigeria, and not an advancement of an existing pathology laboratory practice with a reassigned functionary.
9. Now, if pathology existed and was practiced in Nigeria before 2003, and medical laboratory science never existed before that time, how can a novel profession have been created to repeal a known profession, and the repealed profession is still being practiced the way it was practiced, rather than being stopped and practiced in a novel manner not practiced before? Thus, if MDPA regulates clinical laboratory practice (pathology which has been in existence before 2003) while MLSCNA regulates medical laboratory practice (which was birthed in 2003), both practices of which are distinct and different, what then is the basis for the claim that medical laboratory science has repealed and replaced pathology, when both are for different purposes and functions?
10. It must be noted that prior to the introduction of that new and novel profession, productions of reagents and laboratory equipment used in pathology and veterinary hospital laboratories were done legally outside the shores of Nigeria. The new law brought the legal productions into Nigeria.
It is unfortunate that the average laboratory scientist has intentionally failed to appreciate his duties in Nigerian industrial context. He has interpreted the section 29 MLSCN Act to mean that he now does the same work as a pathologist because part of his training is on the analysis of human samples, without additionally considering the actual purpose of that analysis training; which is for all intents and purposes for production, manufacturing and research purposes only, and not for patients treatment.
Furthermore, if the mere training on analysis of human samples has made a laboratory scientist a pathologist, then, his power to also analyze animal samples as seen above in section 29 MLSCN Act will equally make him a Veterinary Surgeon. This is because section 20 of the Veterinary Medicine Act stated:
"veterinary surgery" means
The art and science of veterinary surgery and medicine and, without prejudice to the generality of the foregoing, shall be taken to include-
(a) the diagnosis of diseases in, and injuries to, animals, INCLUDING TESTS PERFORMED ON ANIMALS for diagnostic purposes..........."
Thus, going by the dictum and wisdom of the Honourable Judge of the National Industrial Court, MLSCN Act has in fact and in effect abolished both the entities called Pathology and the Veterinary Surgery!!! I contend in the reverse.
Therefore, if a laboratory scientist is statutorily trained on the analysis of animal samples which is part of tests performed on animals, then a Nigerian laboratory scientist could actually go to NICN to get himself declared a Veterinary Surgeon if he discovers a safe financial livelihood haven in veterinary medicine any time any day in the future.
©Mr Awkadigwe F. I. (MBBS Nig, LLB Nig)
Episode 3.
THE PARALLELISM OF CLINICAL LABORATORY PRACTICE AND MEDICAL LABORATORY PRACTICE; A CASE OF COURT CONFOUNDING CLEAR LEGISLATIVE SOLEMN DECLARATIONS.
The provisions of MDPA and MLSCNA in their relevant sections are so fundamentally parallel so much so that it is gravidly preposterous to conjecture that in any situation, a pathologist may desire in his life to practise as a medical laboratory scientist. The two fields are so wide apart that the distance is so far enough to swallow the highest ambition of any average doctor that might wish to cover such a distance in his lifetime.
Below are some of the clear statutory provisions in MDPA and MLSCNA that CLEARLY separate the two fields of human endeavor and place them on the different sides of the sphere just as the SUN separates the DAY from the NIGHT.
1. The clear provisions on the scope of regulations. While MDPA is empowered, at its section 1(2)(e) to regulate CLINICAL LABORATORY PRACTICE (ie laboratory practice within hospital setting ) , MLSCNA is empowered at its section 4(b) to regulate MEDICAL LABORATORY PRACTICE (ie non-clinical laboratory practices otherwise recognized by MLSCNA as MEDICAL LABORATORY PRACTICE)
2. The interpretation and definition of MEDICAL LABORATORY PRACTICE in section 29 MLSCNA which VISIBLY, LOUDLY and CLEARLY did not include CLINICAL LABORATORIES as part or aspect of medical laboratory speaks volumes as the Legislature, being fully aware that it had earlier assigned the regulation of clinical laboratories to another body known as MDCN, desisted from including clinical laboratories in the definition of laboratory in section 29 MLSCNA.
3. The total exclusion of the word HOSPITAL and CLINIC from the MLSCNA throughout the length and breath of that legislation points only to a fact that the Act has no intentions for its applications to be directed at the regulation of hospital-based laboratory practice.
4. The definition of MEDICAL LABORATORY PRACTICE by the Act creating same (MLSCNA ), deserves more details here. The Act defines MEDICAL LABORATORY PRACTICE at its section 29 as:
(a) Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research.
THREE MAIN POINTS can be gleaned from this provision of section 29 MLSCNA in order to separate the scopes of MEDICAL LABORATORY PRACTICE from CLINICAL LABORATORY PRACTICE the way grains are separated from chaff; and then buttress the wisdom of Legislature in its intended meticulous designation of the regulations of the two practices to the two different bodies.
I. While the analysis done in medical laboratories under MEDICAL LABORATORY PRACTICE is on HUMAN OR ANIMAL SPECIMENS, the only specimens handled under CLINICAL LABORATORY PRACTICE is HUMAN SPECIMEN. The reason is simple : the pathologist is only concerned with the analysis of the sample of an identifiable and identified patient whose PARTICULAR disease and health or otherwise is his primary concern, and not diseases generally ; while on the other hand, the laboratory scientist is concerned with diseases generally and not that attached to a PARTICULARLY patient. He is also concerned with both human and animal results of the samples gotten from ANIMALS or HUMANS. Thus, while the latter result may be very important to the CLINICAL LABORATORY DOCTOR who is called a PATHOLOGIST (as opposed to a medical/clinical laboratory scientist as the case may be), results from the former are a nonstarter in a clinical setting and thus unimportant, not needed and therefore dispensed with in all its entirety.
II. The scope of MEDICAL LABORATORY PRACTICE include : (a) analysis of HUMAN or ANIMAL specimens (b) production of biologicals (c) design of equipment (d) fabrication of those designed equipment for the PURPOSES of medical laboratory diagnosis, treatment and research.
Of all the four recognized precincts under medical laboratory practice, AND INDEED in the contemporary LABORATORY MEDICINE, not even up to one of the four precincts is found in the activities under clinical laboratory practice regulated by MDPA. In fact the closest proportion undertaken at the clinical laboratories is in a half of a quarter of the whole which is one-eighth. The other seven-eighths are evenly and squarely placed on the table of the exclusive jurisdiction and competences of the medical laboratory scientist. It is this insignificant one-eighth, which MDPA placed its regulation on MDCN that is the bone of contention in this matter.
The laboratory scientists consider that the regulation granted to them on the whooping seven-eighth precincts of the relevant LABORATORY PRACTICE (which by now you should know comprises medical laboratory practice and pathology) is grossly inadequate and therefore that the regulation of the minimal one-eighth should also be added to their regulatory body, MLSCN, too. The Questions that agitate the astute mind are: DO YOU REGULATE A PRACTICE THAT IS WITHOUT YOUR PRECINCT, AND NOT PROPERLY PLACED UNDER YOU BY THE APPROPRIATE ENACTMENTS?
III. Let us gravitate to yet another salient area of interest in the MLSCNA. The wordings of the section 29 MLSCNA is deductibly categorical as it is impudent when it brought to the fore that while clinical laboratory practice is an end in itself, medical laboratory practice is a means to an end. In other words, all the precincts of medical laboratory practice enumerated in this section, I repeat, all, except a part of one of the four, ie one-eighth of the whole, can be considered as an end; viz analysis of human specimen. The other seven-eighths are all geared towards production of BIOLOGICALS and designed EQUIPMENT for RESEARCH, identification and discovery of the best ways that would ENSURE that METHODS of analysis of specimens are sensitive, specific, accurate, error-free and of the optimal predictive values. These, the laboratory scientist, does and discovers, and sends same across to his brother pathologist as well as to the clinical/medical laboratory scientist working within the hospital settings for reliable confident application of the findings and discoveries to identified patients in the care of the clinicians.
The manifest provisions of section 29 MLSCNA is clear and unambiguous. Thus, importing another meaning or adding another qualification not expressly or impliedly covered in the Act is futile and therefore of no moment.
The Act provides for MEDICAL LABORATORY DIAGNOSIS, TREATMENT AND RESEARCH. So, any use of human sample by a medical laboratory scientist not for the purpose of medical laboratory diagnosis, treatment and research is outside the scope of that law. Please note the conjunctive used in that phrase. That means that for a use of human sample to fall within the ambits of medical laboratory practice, it must be for medical laboratory diagnosis, treatment and research ; NOT MEDICAL LABORATORY DIAGNOSIS, TREATMENT OR RESEARCH. For instance, if you use a glucometer to measure blood sugar, the blood is taken directly from the patient into the analyzer and results read and documented for research purposes. Therefore, the blood is not first treated by way of fixing it in a reagented bottle. There was no treatment of the sample in this case even though there was diagnosis and research.That is not medical laboratory practice. It is clinical laboratory practice ACCORDING TO OUR LEGISLATION.
Note that in law, what matters is what is in the law and not what is done in another jurisdiction, nor is it about what you think, or how you feel it should be done. I have laboured to clear the doubts on the meaning of section 29 MLSCNA. Diagnosis is restricted to medical laboratory diagnosis. Medical laboratory diagnosis, according to section 29 MLSCNA is a diagnosis of samples, biologicals and equipment ; and not patient diagnosis. That is also the reason MLSCNA did not mention patient or hospital in all its length and breath.
Tissue diagnosis and sample diagnosis are different from patient diagnosis. Patient diagnosis is the job of the clinicians with the pathologists.
The terms diagnosis or treatment are generic and not proprietary. So, the term diagnosis does not mean exactly the same thing to a medical laboratory scientist as it means to a medical doctor. Diagnosis depends on the subject matter of diagnosis. To the doctor, the subject matter is the patient. For the medical laboratory scientist, the subject matter is the sample. Same goes for treatment : for the doctor, the subject matter for treatment is the patient, and for the medical laboratory scientist the subject matter of treatment is the sample.
Patient (medical) treatment is not medical laboratory treatment. Patient treatment involves history taking, physical examination, provisional diagnosis, (treatment in some cases), investigations (which may include clinical laboratory testing ), (definitive diagnosis in some cases), definitive treatment, and follow up. Meanwhile, MLSCNA provides for medical laboratory diagnosis, treatment and research by the medical laboratory scientist in medical laboratory. It did not refer in any way to patient diagnosis, treatment and research done by the clinicians in the clinics.
May I also draw your attention to the PRINCIPLE OF STATUTORY CONSTRUCTION which is to the effect that an Act does not make law for a function another Act ought to implement.
It must also be noted that it is a settled principle of law that even if MLSCNA had not qualified DIAGNOSIS, TREATMENT AND RESEARCH by the phrase MEDICAL LABORATORY, the Court shall still restrict the scope to that of medical laboratory.
Research as used in the Act is also confined to medical laboratory science research and not research generally. Thus the research contemplated by the Act does not include research in history, anatomy, political science, law, treaties etc.
The big question is : how many medical laboratory scientists or medical laboratories in Nigeria can tell Nigerians the extent they have advanced in giving real life to the clear provisions and mandates exclusively granted them and their profession vide (a) analysis of human and ANIMAL specimens (b) production of biologicals (c) design of equipment (d) fabrication of those designed equipment for the PURPOSES of medical laboratory diagnosis, treatment and research.
© Awkadigwe Frederick Ikenna 2016. Mr Awkadigwe Frederick Ikenna is a Resident in Obstetrics and Gynaecology.
Episode 4.
REVEALED: THE NEW NATIONAL HEALTH ACT 2014 BURIES MEDICAL LABORATORY SCIENCE UNDER THE PATHOLOGISTS
The new National Health Act of Nigeria 2014 has smashed to pieces any iota of hope for the medical laboratory science profession to exist as an independent profession that is not subservient to the medical practitioners in Nigeria. This is because the new National Health Act 2014, has placed the authority and powers of the medical laboratory scientists to touch or use human specimens for analysis and production of biologicals directly under the approval and supervision of the medical practitioners.
In 2015, the National Industrial Court of Nigeria declared the medical laboratory science profession as an independent profession from any other professions. This decision came a year after the enactment of the new National Health Act 2014. It then beggars questions what the medical litigants and their legal counsel canvassed at the National Industrial Court of Nigeria that led the Court to make that declaration in view of the clear provisions of the new National Health Act enacted a year before the Court decision.
The basis for the decision of the National Industrial Court of Nigeria, stating that the medical laboratory science profession was an independent profession which had in effect, essentially replaced the field of Pathology, was that, to the presiding judge, the Medical Laboratory Science Council of Nigeria Act No 11 of 2003, came into conflict with the Medical and Dental Council Act of Nigeria 1988, with the newer Act of 2003 impliedly repealing the provisions of the conflicting relevant provisions of the older Act of 1988.
The National Health Act 2014, which is the newest Act of the National Assembly of Nigeria in relation to health matters, has destroyed all that gains from the decisions of the National Industrial Court of Nigeria in favour of the laboratory scientists. A befitting dissection of this ephemeral victory at the National Industrial Court of Nigeria by the medical laboratory scientists is hereby below pieced up and pieced together.
The Medical Laboratory Science profession was created and mandated to be:
“Medical Laboratory Science”- "Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of MEDICAL LABORATORY diagnosis, treatment and research.
This mandate, it appears, and in fact as has now been clearly provided, has been limited and restricted to a complete supervision and control of the medical and dental practitioners, by the National Health Act of Nigeria 2014. The debate now is no more if there is a conflict between the medical laboratory science profession and pathology. The debate is no longer if medical laboratory science profession has repealed in part and replaced pathology. No.
The debate now is whether in fact there is any profession called medical laboratory science without the sanction of the Medical Profession. The debate, in fact, is whether a medical laboratory scientist can ever analyze a human sample without authorization and supervision of the medical practitioners. The clear provisions of the new National Health Act 2014 has specifically attached the medical laboratory science profession to the apron strings of the medical and dental practitioners in Nigeria. The relevant sections of the laws are hereby laid down for construction.
Section 29 of the Medical Laboratory Science Council of Nigeria Act states:
“Medical Laboratory Science”- "Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment"
Section 52 of the National Health Act 2014 states:
(1) Only a registered medical practitioner or dentist may remove any tissue from a living person, use tissue so removed for any of the purposes stated in this Act or transplant tissue so removed into another living person
(2) Only a registered medical practitioner or dentist , or a person acting under the supervision or on the instructions of a medical practitioner or dentist , may administer blood or a blood product, or prescribe blood or a blood product for, a living person
Section 64 of the same Act states:
"tissue" means human tissue, and includes flesh, bone, a gland, an organ, skin, bone marrow or body fluid, but excludes blood or a gamete
Section 49 (1) of the Act states:
Subject to the provision of section 52 of this Act, a person shall use tissue removed or blood or a blood product withdrawn from a living person only for such medical or dental purposes as may be prescribed.
Section 48(1) of the National Health Act states further:
Subject to the provision of section 53, a person shall not remove tissue, blood or blood product from the body of another living person exerpt
(a) with the informed consent of the person from whom the tissue, blood or blood product is removed granted in the prescribed manner
(b) that the consent clause may be waived for MEDICAL INVESTIGATIONS and TREATMENT in emergency cases; and
(c) in accordance with prescribed protocols by the appropriate authority.
Section 59 then goes on to state:
The Minister , in consultation with the National Council, may make regulations with regard to any other matter which is reasonably necessary or expedient to prescribe in the implementation of this Act
The Long Title of the National Health Act declares:
An Act To Provide A Framework For The Regulation , Development And Management Of A National Health System And Set Standards For Rendering Health Services In The Federation; And For Related Matters
Section 1 (1) of the Act goes on to state:
There is established for the Federation the National Health System, which shall define and provide a framework for standards and regulation of health services, without prejudice to extant professional regulatory laws
Section 64, which is the Interpretation Section of the National Health Act states:
"National Health System" means the system within the Federal Republic of Nigeria, whether in the public or private sector, concerned with the financing, provision or delivery and regulation of health services.
The laid sections are essentially self explanatory. Medical investigations and treatment as used in section 48(1)(c) of the National Health Act, has to be subtly and meticulously contrasted with the use of medical laboratory diagnosis, treatment and research, as used in section 29 of the Medical Laboratory Science Council of Nigeria Act.
In conclusion, the National Health Act subsumed every other professional regulatory law, by preservation and superimposition. The Act saved all the regulatory laws, while at the same time providing framework and conditions for their operability.
The National Health Act preserved the definition and function of Medical Laboratory Science to analyze human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment on one hand; while at the same time subjected the collection and use of such human tissues, body fluids and excretions for any national health purpose, to the supervision, direction and approval of the medical practitioners in section 52 of the National Health Act 2014.
The import of section 52 of the National Health Act 2014 is that the collection, use, supervision and direction of use of human samples in the health sector, from a living person, are now exclusively dispatched to the sole prerogative of the medical practitioners. This simply means that medical laboratory scientists cannot analyze human samples without the collection by medical and dental practitioners, the approval and sanction of the use in the health sector by the medical and dental practitioners. The traditional medical and alternative practitioners are also barred by this provision from collection or use of human samples in the health sector without the sanction of the medical and dental practitioners.
Medical and Dental practitioners are the only categories of professionals empowered by law in Nigeria to collect, use or direct the use of tissues and body fluids from a living person in Nigeria. Also, the combined effects of section 48 and 52 are that only medical and dental practitioners can undertake medical investigations and treatment of living persons. Only medical and dental practitioners can prescribe the use of blood or a blood product in Nigeria. The purported areas of Medical laboratory Science profession, namely ; the medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliative cytology parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council; are therefore mere obvious decorations of a drained and exanguinated profession that are only transfused and revitalized by the sanctions of the medical and dental practitioners.
The curious issue now is whether, in the first place, the medical laboratory science profession is among those professions the National Health Act seeks to moderate, harmonize and integrate. Is medical laboratory science profession a profession in the health services delivery system! I have repeatedly contended in other fora and articles that the profession of medical laboratory science is not a hospital based profession. It is not a member of the National Health System as established in the National Health Act of 2014. It is not a hospital based establishment. Rather, it is a profession charged with the responsibility to produce medical equipment and reagents.
This argument has been buttressed repeatedly by the clear provisions in the National Health Act that only medical and dental practitioners can carry out pathological laboratory investigations in the National Health System of Nigeria when the use of human tissues from living persons is involved. That means that the only leeway available for the medical laboratory scientists to use human tissues for medical laboratory science is if their professional functions are not included in the purposes created by the National Health Act, which purposes are only performed by medical and dental practitioners when it touches on the use of human tissues.
Therefore, as stated in section 52 (1) of the National Health Act 2014 states:
Only a registered medical practitioner or dentist
(a) may remove any tissue from a living person
(b) use tissue so removed for any of the purposes stated in this Act or
(c) transplant tissue so removed into another living person
Thus, if the statutory functions of the medical laboratory scientists are included in the second limb of section 52(1) of the National Health Act 2014, then the profession of medical laboratory science has been abolished by the National Health Act by this provision of section 52(1). The only possible conclusion is that medical laboratory science profession is not included in the second limb of section 52(1), it is not a hospital based profession, and it is not envisaged or factored into, by the National Health Act, which Act is also far later in time, as an integral part of the National Health System of Nigeria.
The activism and exploits of the medical laboratory science professional group to emerge as an independent profession that is not under the apron strings of the medical and dental profession has thus suffered mortal staccato blows and is hereby given a staggering and shattering cudgel by the head, with the nail of perpetual dependence on medical and dental practitioners, finally driven deep down into the whole length of the whole thickness of the coffin boards, by the National Health Act.
©Awkadigwe Fredrick Ikenna 2018 (MBBS, LLB, MWACS, DSC)
awkadigweikenna@gmail.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 using chrome or web browser preferably, as opera mini does not readily open the comments area.
© 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 the written approval and license of the author, Ikenna Fredrick Awkadigwe.
Episode 5
THE NICN JUDGMENT AND MLSCNA: ANY CAUSE AND EFFECT? TAKING APART THE RATIO DECIDENDI IN THE LEARNED JUDGE'S STARE DECISIS AND OBITER.
In the judgment of the honourable court in the case of Medical and Dental Practitioners Act (MDPA) and Medical Laboratory Science Council of Nigeria Act (MLSCNA), the learned trial judge observed, and in other instances decided the following:
1. That there was a fatal conflict between MDPA and MLSCNA which must of necessity lead up to an implied repeal of the portions of the MDPA that handed over the regulation of hospital/clinical laboratory practice to MDCN. The judge therefore handed regulation of medical/clinical laboratory practice over to the newer legislated MLSCNA even though that he conceded that MLSCNA did not subsume the whole contents of pathology which he found to be identical to medical laboratory science.
2. That the clear intendment of Legislature in enacting MLSCNA (which in the wisdom of the trial judge was enacted to provide for the regulation of both medical and clinical laboratory practice that have now become one and the same ) was to cede power of regulation of clinical laboratory practice earlier granted MDCN to MLSCN
3. That medicine has grown so unwieldy to the extent that Legislature in enacting MLSCNA clearly manifested an intention to unbundle medicine and in so doing, create out of that unwieldy medical practice an autonomous non-medical practice (which in his own belief was the intendments of Legislature to make the practice all the same a clinical department ) called medical laboratory practice that shall be independent of any other field of study including medicine for the clinical management of the patient.
4. That doctors have become jack of all trades, and thus the construction of the two Acts shall be such as to tame medical profession and sprout and establish medical laboratory practice, which if any doctors wished to join, such doctors should have to go and retrain as a medical laboratory scientist first and foremost before ever attempting to henceforth touch a test tube.
Those weighty pronouncements of the learned trial judge deserve a deeper analysis and evaluation to decifer if they have any iota of legal or factual authority or support, or whether they are just a judicial officer's overwhelming jaundiced emotional verbiage with no statutory flavor whatsoever. Was the learned trial judge construing the letters of the enactments or was he deciding the case from a concoction prepared from a recipe of admixture of his scanty personal ideas about what medicine and doctors stand for and his bias as to the status of industrial harmony and professional delineations, or was it an informed altruistic comprehensive statutory construction?
It must be noted that in arriving at the aforesaid conclusions, the learned trial judge did not advert himself to the clear provisions of the following enactments:
a. The Constitution of the Federal Republic of Nigeria which preserved all the fields of Medical Practice at its section 144, including the field of Pathology
b. The National Medical College Act 1979 which qualifies all the Specialists in the field of Medicine including the field of Pathology
c. The National Health Act 2014 which handed over the testing of human samples in the hospitals exclusively to the medical practitioners
d. The Teaching Hospital Acts which created the different Teaching Hospitals primarily created for the provision of facilities for the training of medical practitioners only, including the Pathologists, and
e. The Teaching Hospital Board Reconstitution Act
The learned trial judge did not also join the Pathologists, the MDCAN and NARD in the suit which outcome would directly affect them.
However, before any attempt at analysis of the learned trial judge's pronouncements, there is a need to outline the following implied findings and necessary high points of the trial judge and place them face-to-face with the points canvassed in favour of MDCN at that trial to ascertain those material facts the learned trial judge considered relevant and made his final decisions upon them. Thereafter I shall do justice to the possible issues for determination at the Appeal Court in the inevitable upcoming appeal and matters incidental to them.
The key words/phrases in this discussion are: patient sample, human sample, hospital, doctor, medical laboratory, clinical laboratory, scientist, research, pathologists, pathology.
THE HIGH POINTS.
The honourable trial judge appears to have concluded from the evidence before him that MDCN had a legal right to regulate clinical and medical laboratories before the advent of MLSCNA. This legal right of regulation and control existed until the commencement of MLSCNA which abrogated that right and then transferred same to MLSCNA.
If the above submission is conceded, then it necessarily implies that the points as they were canvassed by counsel to MDCN were of such requisite material particulars as to warrant the above concession.
It must be pointed out that the Medical and Dental Practitioners Act did not make any provisions for Medical Laboratory Practice. It only provided for clinical laboratory. This means that medical laboratory practice was unknown to law in Nigeria before the year 2003. It means that medical laboratory was a new introduction created for a totally new purpose unknown to laboratory practice in Nigeria, and not an advancement of an existing laboratory practice with a reassigned functionary.
Now, if pathology existed and was practiced in Nigeria before 2003, and medical laboratory science never existed before that time, how can a novel profession have been created to repeal a known profession, and the repealed profession is still being practiced the way it was practiced, rather than being stopped and practiced in a novel manner not practiced before? Thus, if MDPA regulates clinical laboratory practice (pathology which has been in existence before 2003) while MLSCNA regulates medical laboratory practice (which was birthed in 2003), both practices of which are distinct and different, what then is the basis for the claim that medical laboratory science has repealed and replaced pathology, when both are for different purposes and functions?
It must be noted that prior to the introduction of that new profession, productions of reagents and laboratory equipment used in pathology and veterinary hospital laboratories were done legally outside the shores of Nigeria. The new law brought the legal productions into Nigeria.
ISSUES FOR DETERMINATION
1. Whether, by construing the letters employed by Nigerian Legislature in exhibiting and declaring its intentions on regulations and control of clinical and medical laboratory practices, there exists a conflict between MDPA and MLSCNA
2. Whether it is MDPA or MLSCNA that is charged with the responsibility of regulation of clinical laboratory practice in Nigeria
3. Whether medical laboratory practice in Nigeria, as provided for in MLSCNA, is a direct mandatory requirement for patients care in Nigerian hospitals
4. Whether the scope of medical laboratory practice as exhaustively described by MLSCNA extended into the clinical laboratory practice as provided for in MDPA (and all the regulations made pursuant thereto) as to subsume it
5. Whether a medical laboratory and practice, construing our extant legislations, is anything short of experimental knowledge-building legislative creation and research outfit totally under the sole regulation and control of MLSCN
6. Whether a medical laboratory scientist, construing our extant legislations, has any direct involvement with patient management whatsoever in our hospitals
7. Whether medical laboratory practice, construing our extant legislations, is identical to clinical laboratory practice; and if not, where is the frontier of regulation situated between the two practices
8. Whether, by the provisions of sections 19(1)(c) MLSCNA listing the only members of medical laboratory personnel (scientist, technician and assistant), section 29 MLSCNA listing the definition, contents and scope of medical laboratory professionals, and relevant enactment in MDPA and regulations made pursuant to it; the work of a pathologist and that of a medical laboratory professional has become so similar and identical that their regulations have dovetailed to the extent that Legislature intends (from proper constructions of MLSCNA and MDPA in concert ) that both practices should be regulated by one body, MLSCN, rather than the two being regulated by their separate Councils
9. Whether, from the tenors and proper constructions of MLSCNA and MDPA in concert, the pathologists in the practice of their profession as created under section 1 MDPA and subsidiary instruments made under it, are in any way under the control and regulations of MLSCNA
10. Whether, in or before the practice of his profession as enacted in MDPA and the subsidiary instruments made thereto, the job of a pathologist as provided in MDPA to the extent of its now adjudged subsuming into the job of a medical laboratory scientist, has been validly abolished by the MLSCNA, and a pathologist is now obligated to re-register as a medical laboratory professional for him to practise his art
Running through the length and breath of all the above points for determination is one fundamental issue that when adequately resolved will as of necessity resolve all other issues. Therefore, the comprehensive issue for determination can be formulated thus:
WHETHER, FROM THE PROVISIONS OF OUR EXTANT LEGISLATIONS, MLSCNA AND MDPA AND ALL THE VALID SUBSIDIARY INSTRUMENTS MADE UNDER THEM, MEDICAL LABORATORY PRACTICE IS THE SAME AS CLINICAL LABORATORY PRACTICE
In other words, has the training and practice of medical laboratory science in Nigeria, as provided for by MLSCNA, rendered the training and practice of clinical laboratory practice (ie pathology ) to the extent of its supposed subsumption and emasculation by MLSCNA, nugatory. That is to say that if medical laboratory science has supposedly replaced a sizeable nugget of pathology, what is then left for the pathologist?
In an attempt to resolve this omnibus issue, we shall first and foremost comment on the anatomy and physiology of the two legislations.
ANATOMY
The term laboratory (in its scientific context and not in the generic sense) means:
1. a room, building or institution equipped for scientific research,experimentation or analysis
2. a place where chemicals, drugs or microbes are prepared or manufactured
3. a place equipped for experimental study in a science or for testing and analysis
There are many different types of laboratories which include clinical laboratory, medical laboratory, photographic laboratory, music laboratory, science laboratory, chemical laboratory, colour laboratory, image laboratory, food laboratory, biological laboratory etc.
On the other hand, SCIENCE means:
1. A particular discipline or branch of learning, especially one dealing with measurable or systematic principles rather than intuition or natural ability. [from 14th c.]
2. (archaic) Knowledge gained through study or practice; mastery of a particular discipline or area.
3. (now) The fact of knowing something; knowledge or understanding of a truth.
4. (uncountable) The collective discipline of study or learning acquired through the scientific method; the sum of knowledge gained from such methods and discipline.
5. (uncountable) Knowledge derived from scientific disciplines, scientific method, or any systematic effort.
The summary of the above dictionary definitions of 'laboratory'and 'science' is to bring to the fore the ordinary meaning of laboratory science (and by necessary extension, medical laboratory practice ) so as to put the ordinary meaning of medical laboratory science in proper perspective with the wisdom of our Legislature in the enactment of section 29 of MLSCNA and the patent error in the statutory construction of the learned trial NICN judge.
It is a notorious fact, supported by day to day activities and subsidiary instruments of MDPA, that the job of a pathologist is not to do any of the above jobs enumerated in the definitions above to wit: experimentation, scientific laboratory research with samples, preparation or manufacture of chemicals or microbes etc as is required of a laboratory scientist; neither is he concerned with the acquisition of knowledge in those regards as are required of a laboratory scientist. Rather, what is required of a pathologist is just one thing viz THE CLINICAL APPLICATIONS OF THE KNOWLEDGE ALREADY ACQUIRED BY THE SCIENTISTS IN THE COURSE OF THEIR EXPERIMENTATIONS.
Turning now to our legislation, which is our abiding criterion, it can easily be noted that while MLSCNA is exhaustive in its definition of what it called medical laboratory science/practice in terms of definition, content and scope, the MDPA was mute and silent by half. MDPA was only explicit on the contents of what it called clinical laboratory practice without elaborating on the scope. Instead, the Act left the scope in the hands of MDCN to determine.
PHYSIOLOGY
The state, professions and regulations are creations of statutes. They are confined in their contents and scopes to the plenitude and latitude allowed them by their enabling statutes . Bearing this in mind as regards a federal legislation, the provisions of the Interpretation Act becomes relevant.
The Interpretations Act:
Section 10:
(1) Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.
(2) An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.
Section 12:
(1) Where an Act confers a power to make a subsidiary instrument, proclamation or notification, the power shall include-
(a) power to make different provision for different circumstances;
(b) power, exercisable in the like manner and subject to the like consent and conditions (if any), to vary and revoke the instrument, proclamation or notification
Section 19:
(1) An expression used in a subsidiary instrument has the same meaning as in the Act conferring power to make the instrument.
(2) In a subsidiary instrument, the expression "the Act" means the Act conferring power to make the instrument.
Section 3:
(1) Punctuation forms part of an enactment, and regard shall be had to it accordingly in construing the enactment.
Section 18:
(2) Where by subsection (1) of this section or any other enactment a meaning is assigned to a word, parts of speech related to the word have corresponding meanings.
Section 37:
(1) Without prejudice to the provisions of section 18 of this Act, in this Act the following expressions have the meanings hereby assigned to them respectively, that is to say-
"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;
"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.
Now, having enumerated the above aids to interpretation of the two Acts, it behoves on me to make a few pertinent points. Note also that, from the provisions of the above cited Interpretation Act, it is settled that no matter how elegant a subsidiary Instrument may be couched, it is incompetent of expanding the scope of an enactment beyond that encapsulated by its enabling Act.
Therefore:
1. While MLSCNA has circumscribed what it called medical laboratory profession by providing for both the definition, contents and general scope of the profession, MDPA only provided for the contents, and thereafter left the enactment of the scope to MDCN to fill up. Because of this, it would be said that variation of scope of clinical laboratory practice is easier and less easily ascertainable than the scope of medical laboratory practice. Therefore, for the resolution of the conflict between MDPA and MLSCNA, it shall avail if we considered the scope of MLSCN as enacted in the MLSCN Act and thereafter juxtapose our discoveries on the scope of MDPA and its subsidiary instruments, to find out if there is really a conflict or overlap and the nature and effects of such conflict or overlap if any; or painstakingly to discover if the two professions are irredeemably nautical miles apart.
The enactment that falls down for construction is the paragraph in section 29 MLSCNA :
"Medical Laboratory Science-
(a) Means the practice involving the analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research; and
(b) includes medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliative cytology parasitology, forensic science, molecular biology, laboratory management; or any other related subject as may be approved by the Council."
It goes to show that the enumerated branches of medical laboratory science are all related. What then is their relationship? Their relationship, from the index Act, is that they are all laboratory science ; and laboratory science is all about experimentation, research, production and manufacture of chemicals for the purpose of acquisition of knowledge that would be subsequently applied by the pathologists in the clinical laboratory for solving the patients' diagnosis problems.
The scientific nature of the duty of a medical laboratory scientist ( and not the pathologistic nature of the pathologist's duty) is even more obvious when the contents of the two contending fields are juxtaposed. Take a look:
MDPA :
Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology
MLSCNA :
medical microbiology, clinical chemistry, chemical pathology, haematology, BLOOD TRANSFUSION SCIENCE, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativeytology parasitology, FORENSIC SCIENCE, molecular biology, laboratory management; or any other related subject as may be approved by the Council
Let us assume, but without conceding that both contents relate to the same disciplines, then the important points to be gleaned from this legislative wisdom depicted in both Acts would be as follows:
1. While a medical laboratory scientist can double and be called a clinical laboratory scientist (when he works in the clinical laboratory after undergoing clinical internships, or does in a non-clinical production laboratories what is deemed to be done under clinical laboratory setting ), yet a medical laboratory is not stricto senso, nor is it in any way close to a clinical laboratory in our legislations, and probably indeed in any other jurisdiction.
2. The MLSCNA in its definition of a laboratory as cited above clearly excluded the clinical laboratories in loud recognition of the fact that in Nigeria, another Act has provided for clinical laboratory practice
3. Laboratory Practices are such a broad area to the extent that some areas are practiced in the hospital setting (reserved to be regulated by MDPA ) while others are practised outside the hospital setting (reserved to be regulated by MLSCNA and other statutory nonclinical laboratory regulators)
4. It then means that those areas mentioned in section 1(2)(e) MDPA are the only laboratory medicine that may be practised within the hospital setting while those in section 29 MLSCNA are the areas that have its practice outside the hospital setting
5. It then literally follows that the following can be practised in the hospitals:
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
Whereas the following can be practised outside the hospital setting :
medical microbiology, clinical chemistry, chemical pathology, haematology, blood transfusion science, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativecytology, parasitology, forensic science, molecular biology, laboratory management.
6. The effect is that only
HAEMATOLOGY, CHEMICAL PATHOLOGY, CLINICAL CHEMISTRY, MEDICAL MICROBIOLOGY and IMMUNOLOGY
that may be practised concurrently within and outside the hospital regulated within and outside the hospital by MDPA (within the hospital ) and MLSCNA (outside the hospital )
7. It also invariably follows that Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Medical Parasitology, and Medical Virology may not be practised outside the hospital setting in Nigeria
8. It is also conclusive that ONLY blood transfusion science, virology, histochemistry, cytogenetic, exfoliative cytology, parasitology, forensic science, molecular biology, laboratory management are the laboratory practices that may be permitted to be practised outside the hospital regulated by MLSCNA in its entirety; and although no law forbids its practice within the hospital setting, may be practised in the hospital setting BUT UNDER THE REGULATION OF MLSCNA and not MDPA.
The reverse is also true that where clinical laboratory practice is done outside hospital setting it SHALL BE REGULATED BY MDPA and not MLSCNA.
Even the trial NICN judge conceded (though broadly rather than narrowly ) the fact that there were areas of divergence of the contents of the two practices, the judge having supposedly found that the two disciplines dovetailed.
It is submitted that the two practices are not in any way the same thing and neither is subsumed in the other. This conclusion is not only drawn from the provisions of the enactments, as to scope, as canvassed in this article but also from the provisions as to contents of the two practices and the incontrovertible position of those legislations that medical laboratory practice (though capable of independent existence outside hospital settings and thus capable of its own regulation and ascension to the zenith of that profession); it is hereby laid to rest that a medical laboratory practitioner in hospital settings IN NIGERIA (ie a clinical laboratory scientist) is a mere medical (ie pathologist's) assistant incapable of independent existence.
The medical laboratory science is a science. Human Medical Practice (Pathology) is not just a science; it is both science and art. See section 20 of Veterinary Medicine Act. Also see the online of the contents of pathology and medical laboratory science:
MDPA:
Histopathology, Forensic Pathology, Autopsy and Cytology, Clinical Cytogenetics, Haematology, Medical Micro-biology and Medical Parasitology, Chemical Pathology, Clinical Chemistry, Immunology and Medical Virology
MLSCNA :
medical microbiology, clinical chemistry, chemical pathology, haematology, BLOOD transfusion SCIENCE, virology, histopathology, histochemistry, immunology, cytogenetic, exfoliativeytology parasitology, forensic SCIENCE, molecular biology, laboratory management; or any other related subject as may be approved by the Council
Those "SCIENCE"s in the contents of medical laboratory science did not appear in error. They were studious legislative enactments to clearly showcase their intendments. Nobody can wish that intendments away. The scientific contents of this profession are created to produce reagents and equipment for the corresponding contents of the pathology laboratories. Both professions are coterminous in functions but parallel in definition.
Functionally, a medical laboratory scientist is to the pathologist what a tire manufacturing company is to a car manufacturer; though the tire manufacturing company can ascend to the zenith of tire manufacturing by researching into the best, durable and most profitable ways of making tires, he may not be seen to assume the status of the CAR MANUFACTURER or compete with other car manufacturing companies inter paris; because he only did a snippet of the whole endeavor albeit crucial snippet at that in the manufacturing of a car. He can however compete with other colleague tire manufacturers in any way. The doctor (pathologist) is the car manufacturer here. The medical laboratory scientist makes the tire which he knows best how to make; BUT AT THE SPECIFICATION OF THE PATHOLOGIST who best knows the type of car he wants to use the tire for (his patients managed on a case to case basis in their circumstances).
Furthermore, it is noteworthy , to buttress above assertion, that while we have forensic pathology in MDPA, what we have in MLSCNA is forensic science. MLSCNA also went ahead to provide for blood transfusion science as against blood transfusion pathology. These are no mere semantics. Legislature does not employ words in futility; not when it is still the same territorial and jurisdictional Legislature that legislated the two legislations. It is submitted that Legislature has clearly declared the intendment to separate the two disciplines.
It has even been suggested that it has been mooted that if not for want of better lexical options, that Legislature would have elaborated on the difference between the spheres of both Acts by drafting section 29 MLSCNA as follows:
medical microbiological science, clinical chemistry science, chemical pathological science, haematological science, blood transfusion science, virological science, histopathological science, histochemistry science, immunological science, cytogenetic science , exfoliative cytological science, parasitological science, forensic science, molecular biological science, laboratory management science ; or any other related laboratory science subject as may be approved by the Council.
The need for the inelegant draft, supra, was obviated by the clear statutory circumscription of medical laboratory science in the mediate anterior paragraph of the above redrafted paragraph as shall be elucidated shortly.
The anterior paragraph states medical laboratory science as a practice involving:
analysis of human or animal tissues, body fluids, excretions, production of biologicals, design and fabrication of equipment for the purpose of medical laboratory diagnosis, treatment and research.
Now, let me break it down. This draft need to be put in a paragraphing technique that would aid the comprehension of that clause. Thus, the clause can be restructured as follows :
a. analysis of human or animal tissues, body fluids, excretions,
b. production of biologicals,
c. design and fabrication of equipment
for the PURPOSE of MEDICAL LABORATORY diagnosis, treatment AND research.
Note abundantly that the purpose of (a)(b) AND (c) is for medical laboratory diagnosis, treatment AND research ;
And not for PATIENT diagnosis, treatment AND research!!!!!! Neither is it for medical diagnosis treatment and research. Medical diagnosis, treatment and research is totally different from medical laboratory diagnosis treatment and research. Medical diagnosis, treatment and research is what medical doctors do; while medical laboratory diagnosis, treatment and research is what medical laboratory scientists do.
How else can Legislature declare to the blind and dumb that its intentions are not myriad? How else is Legislature expected to wake the dead from the yonder life and tell the immortal that it has circumscribed medical laboratory practice with red ribbon? I cannot see more.
It simply flows from the above enactment, as day follows the night, that the doing of (a), (b) AND (c) is for a particular purpose and not otherwise. That that particular purpose is for MEDICAL LABORATORY diagnosis, treatment AND research.
Therefore, a medical laboratory scientist could do all of (a),(b)&(c) for a sole purpose of medical laboratory diagnosis, treatment AND research.
Note also the conjunctive "AND" in the first limb of the paragraph once more. Note also the second conjunctive in the second limb of the same paragraph.
The next question is:
what is MEDICAL LABORATORY DIAGNOSIS,TREATMENT AND RESEARCH?
It simply means, medical laboratory
i. DIAGNOSIS,
ii. TREATMENT AND
iii. RESEARCH
It means the diagnosis, treatment and research done at or inside a medical laboratory. We earlier saw what is enacted to be done in a medical laboratory. They are those activities contained in (a) (b) AND (c) supra and no other.
We also saw that (a), (b) AND (c) can only be used for purposes of medical laboratory goals of (i)(ii)&(iii) only, in the course of the business of a medical laboratory scientist.
The implications are that there are some manner of DIAGNOSIS, TREATMENT and RESEARCH done at or in a medical laboratory using (a), (b) AND (c). The question that comes to mind is:
WHAT MANNER OF DIAGNOSIS, TREATMENT and RESEARCH are envisaged in this enactment? Is it the same as what is done in the clinics, namely patient medical diagnosis, patient medical treatment and patient medical research? Could it be clinical diagnosis of patients, clinical treatment of patients and clinical research of patients? Could it be that MLSCNA was enacted by Legislature to now oust the clinicians from patient diagnosis, treatment AND research, having come later in time than MDPA? Or could it be that the court could mercifully pronounce that this duties of patient diagnosis, treatment AND research should be shared equally between doctors and scientists? It is literally nothing short of preposterousness to construct this limb so broadly as to suggest any of the rhetoricals.
It must be noted that it is a settled principle of law that even if MLSCNA had not qualified DIAGNOSIS, TREATMENT AND RESEARCH by the phrase MEDICAL LABORATORY, the Court shall still restrict their scope of the diagnosis, treatment and research to that of medical laboratory. Research as used in the Act is also confined to medical laboratory science research and not research generally. Thus the research contemplated by the Act does not include research in history, anatomy, political science, law, treaties etc.
The dictionary definition of clinic comes handy:
Definition of a clinic :
1. A medical facility, such as a hospital, especially one for the treatment and diagnosis of outpatients. A group practice of several physicians.
2. A meeting for the diagnosis of problems, or training, on a particular subject.
3. A temporary office arranged on a regular basis to allow politicians to meet their constituents.
4. A series of workouts used to build wrestling skills of practitioners regardless of team affiliation.
It is submitted that the scope of the DIAGNOSIS, TREATMENT and RESEARCH contemplated by the paragraph in section 29 MLSCNA is strictly limited to (a), (b) AND (c) above. The laboratory scientist uses (a), (b) AND (c) to make his medical laboratory diagnosis; uses (a), (b) AND (c) to make his medical laboratory treatment; and uses (a), (b) AND (c) for his medical laboratory research. He, too, is of necessity, according to section 29 MLSCNA, to be seen to make medical laboratory diagnosis, medical laboratory treatment and medical laboratory research in the course of his activities to fall within the scope of the MLSCNA, as a medical laboratory scientist practising medical laboratory science. This requirement, it is submitted, is the meat of medical laboratory practice. This requirement is however not required where a medical laboratory scientist is working under a pathologist as a clinical laboratory scientist; a distinction with huge difference. Here lies the difference between a medical laboratory scientist working in a medical laboratory under the regulation made by MLSCN and a clinical laboratory scientist working in a hospital/clinical setting under the regulation made by MDCN.
The provisions of section 29 MLSCNA are clear and unambiguous. Thus, importing another meaning or adding another qualification not expressly or impliedly covered in the Act is futile and therefore of no moment.
The Act provides for MEDICAL LABORATORY DIAGNOSIS, TREATMENT AND RESEARCH. So, any use of human sample by a medical laboratory scientist not for the purpose of medical laboratory diagnosis, treatment and research in the course of his business is outside the scope of that law. That means that for a use of human sample to fall within the ambits of medical laboratory practice, it must be for medical laboratory diagnosis, treatment and research. For instance, if you use a glucometer to measure blood sugar, the blood is taken directly from the patient into the analyzer and results read and documented for research purposes. Therefore, the blood is not first treated by way of fixing it in a reagented bottle. There was no treatment of the sample in this case even though there was diagnosis and research.That is not medical laboratory practice. It is clinical laboratory practice ACCORDING TO OUR LEGISLATION.
Note that in law, what matters is what is in the legislation, and not what is done in another jurisdiction, nor is it about what you think, or how you feel it should be done. For people that read the law rather than study it, it is usually so easy to rush into conclusions. I have laboured to clear the doubts on the meaning of section 29 MLSCNA. Diagnosis is restricted to medical laboratory diagnosis. Medical laboratory diagnosis, according to section 29 MLSCNA is a diagnosis of samples, biologicals and equipment ; and not patient (medical) diagnosis. That is also the reason MLSCNA did not mention patient or hospital in all its length and breath.
Tissue diagnosis and sample diagnosis are different from patient diagnosis. Patient diagnosis is the job of the clinicians with the pathologists. The terms diagnosis and treatment are generic and not proprietary. So, the term diagnosis does not mean exactly the same thing to a medical laboratory scientist as it means to a medical doctor. Diagnosis depends on the subject matter of diagnosis. To the doctor, the subject matter is the patient. For the medical laboratory scientist, the subject matter is the sample, biological and equipment. Same goes to treatment: for the doctor, the subject matter for treatment is the patient, and for the medical laboratory scientist the subject matter of treatment is the sample, biological and equipment.
Thus, the medical laboratory scientist can (and is empowered by MLSCNA to) use animal or human samples, biologicals and equipment to make diagnosis of any cause and nature of those samples, biologicals or equipment. In doing so, he can know when the sample, biological and equipment have a problem/defect and he identifies the problem/defect promptly and finds a way of documenting such diagnosis and improving on the process of diagnosis in future. The medical laboratory scientist can as well use animal or human samples, biologicals and equipment to treat his samples, biological and equipment for quality preservation, storage or fixing. The medical laboratory scientist is at liberty in the course of his career to employ all those instruments placed at his disposal by section 29 MLSCNA to achieve the mandates he is enjoined in the Act.
This position is reinforced by the provisions of the same MLSCNA at section 4 (e), to the effect that MLSCN shall:
regulate the production, importation, sales and STOCKING of diagnostic laboratory REAGENTS and CHEMICALS........,
And this is specifically true especially when it concerns those reagents and chemicals that are products of applied biology ie the BIOLOGICALS as used in the MLSCN Act. The medical laboratory scientist can also use animal or human samples, biologicals and equipment to research into better ways of diagnosis, treatment and research. That is the only legal basis a laboratory scientist can touch human or animal samples; for the analysis and production of biologicals, equipment and reagents.
Bringing the whole discussion home, it all means that :
1. All the laboratories in Nigeria purporting to be medical laboratories, but which are in reality, clinical laboratories (by virtue of the fact that they purport to produce analysis results of identified patient samples and send same to the clinicians ) are not only unethical, unlawful and hazardous; but all the same are caught up by the regulations made by MDCN. They are squarely under the control of MDCN and NOT MLSCN.
2. All the laboratories in Nigeria purporting to be medical laboratories are impostors practising pathology illegally. This is because, by passing such results to the clinicians, they have abdicated their statutory limits, acted unlawfully putting patients' health in danger; and in addition, have invariably placed themselves under the Argos eye of the clinicians who are perpetually and perennially obligated to observe an ethical laid-down process of proper and standard patient care.
3. The interpretation by the pathologist of the plain results gotten by his technical team (the medical laboratory professionals ) goes beyond the quality checks of the laboratory scientist. It is the meat of laboratory medicine bearing in mind that the quality checks of the laboratory scientist is not only fallible (not in this era of our national life where no doctor can guarantee the possible procurement of unadulterated biologicals, adequate treatment and preservation of equipment and transfer of such equipment and biologicals under standard conditions for conduct of a reliable and reproducible results); but also an initial event in chain of events that is not broken in clinical practice. The pathologist's role in this scheme of things is a standard prerequisite of events that need to be executed in the process of clinical laboratory medicine before unleashing of the interpteted investigation results to the clinicians.
The pathologist interpretes laboratory scientist's sample results using as benchmark the information at his disposal contained in the consult (form/letter). In doing so, he may accept the results in its entirety, modify its effect, reorder the sample analysis to be done by the laboratory scientist under the same or different conditions or re-conduct the sample analysis himself or under his direct supervision whether the laboratory scientist is general or specific scientist. The same is also true of clinical laboratory results where the pathologist has descended into the arena of mediate patient consultation and management.
In conclusion:
FROM THE ABOVE SUBMISSIONS, IT IS NOW CRYSTAL THAT MLSCNA DID NOT SUGGEST IN ANY MATERIAL PARTICULARS THAT THE PROFESSION OF MEDICAL LABORATORY SCIENCE HAD ANY DIRECT LINK OR MEDIATE CONNECTION WITH THE HOSPITAL, DOCTOR OR PATIENTS?
For the avoidance of doubt on how the work of a doctor in clinical medical practice (not clinical laboratory practice this time around ) is conducted, it shall be important to clarify that every clinical laboratory request FORM issued from a clinician's desk is a consult to a pathologist, and not a request to a medical laboratory professional in whatever name he is called to directly avail the clinician of any reply. This aforesaid clinical medical practice is totally regulated by MDPA.
It is evident that just as the heavens are detached from the earth, MLSCNA, in all the debates for or against its reach as to the regulation of laboratory practices in Nigeria, cannot be seen to even contemplate the regulation of clinical medical practice. How the clinician goes about the lawful, proper and ethical manner of management of his patients with regard to whom amongst the medical or health professionals to get involved to aid or assist in patient management, is a matter of legislations other than MLSCNA. The discretion on whom to call in for assistance lies squarely on the clinician. The clinician's practice is totally regulated by legislations other than MLSCNA.
An assistant cannot, in law, regulate the properly and diligently discharged duties of his principal. Ultimately, an Act or body (in this case MLSCNA or MLSCN ) cannot validly regulate the activities of members of another profession other than its professionals (in this case pathologists ) which the Act does not regulate.
The same is true for MDPA/MDCN purporting to regulate professionals not being in their profession. It has been variously submitted that a body does not make regulation of practice for another body. It is the doctor that demands for the test, uses the results, accepts or rejects it one way or the other . He is at the center of it all. It is like asking the pharmacists council to regulate the type of drugs and dosage a medical doctor can prescribe or the route of administration of a multi route drug. This is because even though the doctor is not a pharmacist, yet he has been appropriately trained ( more and better than the pharmacist who made and designed the drug ) on the application of those drugs generally made to particular situations of an identified patient.
The pathologist is not a medical laboratory scientist but he is better trained than the medical laboratory scientist on how to apply the equipment and biological generally made by the scientist to particular situations of an identified patient. Doctors practice human medicine.
It is because of this possible issue of conflicts and conflagration that Legislature in its wisdom painstakingly decided in clear and unambiguous delivery of intentions to carve out human clinical laboratory practice and handed same over to the pathologist who has the requisite skills and training on the application of available medical laboratory knowledge, acquired through stringent medical laboratory research, to identified human patients managed under the human clinical setting.
This has brought peace in clinical practice until recently when the limited vociferous flagship of medical laboratory scientists saw that they were not prepared for medical laboratory practice because of poverty of requisite training, knowledge and employment opportunities; they find that the only familiar and available terrain was clinical laboratory practice and that that practice is the only attractive route for a failed implementation of an innovative, laudable and ambitious legislation made in 2003 for the sole regulation of medical laboratory scientists.
How many medical laboratory scientists or medical laboratories in Nigeria can comfortably and confidently tell Nigerians the extent they have advanced in giving real life to the clear provisions and mandates exclusively granted them and their profession, namely:
(a) analysis of human or animal specimens
(b) production of biologicals
(c) design of equipment and
(d) fabrication of those designed equipment
for the PURPOSES of medical laboratory diagnosis, treatment and research.
Having come this far, could it be said that all the points for determination listed at the commencement of this discussion have been resolved, to wit:
1. Whether, by construing the letters employed by Nigerian Legislature in exhibiting and declaring its intentions on regulations and control of clinical and medical laboratory practices, there exists a conflict between MDPA and MLSCNA
2. Whether it is MDPA or MLSCNA that is charged with the responsibility of regulation of clinical laboratory practice in Nigeria
3. Whether medical laboratory practice in Nigeria, as provided for in MLSCNA, is a direct mandatory requirement for patients care in Nigerian hospitals
4. Whether the scope of medical laboratory practice as exhaustively described by MLSCNA extended into the clinical laboratory practice as provided for in MDPA (and all the regulations made pursuant thereto) as to subsume it
5. Whether a medical laboratory and practice, construing our extant legislations, is anything short of production and experimental knowledge-building legislative creation and research outfit totally under the sole regulation and control of MLSCN
6. Whether a medical laboratory scientist, construing our extant legislations, has any direct involvement with patient management whatsoever in our hospitals
7. Whether medical laboratory practice, construing our extant legislations, is identical to clinical laboratory practice; and if not, where is the frontier of regulation situated between the two practices
8. Whether, by the provisions of sections 19(1)(c) MLSCNA listing the only members of medical laboratory personnel (scientist, technician and assistant), section 29 MLSCNA listing the definition, contents and scope of medical laboratory professionals, and relevant enactment in MDPA and regulations made pursuant to it; the work of a pathologist and that of a medical laboratory professional has become so similar and identical that their regulations have dovetailed to the extent that Legislature intends (from proper constructions of MLSCNA and MDPA in concert ) that both practices should be regulated by one body, MLSCN, rather than the two being regulated by their separate Councils
9. Whether, from the tenors and proper constructions of MLSCNA and MDPA in concert, the pathologists in the practice of their profession as created under section 1 MDPA and subsidiary instruments made under it, are in any way under the control and regulations of MLSCNA
10. Whether, in or before the practice of his profession as enacted in MDPA and the subsidiary instruments made thereto, the job of a pathologist as provided in MDPA to the extent of its now adjudged subsuming into the job of a medical laboratory scientist, has been validly abolished by the MLSCNA, and a pathologist is now obligated to re-register as a medical laboratory professional for him to practise his art of pathology.
All the issues have been resolved in favour of MDPA and MDCN.
I have done a painstaking job to aid the lawyers in understanding the provisions of the laws so as to help them understand that medical laboratory practice is not the same as clinical laboratory practice. I have explained that while medical laboratory practice is a research-oriented practice, that clinical laboratory practice (ie pathology and support disciplines) is an applied laboratory practice. In other words, that the former feeds into the latter, that the former is the building block of the latter, that the former is not practised in the hospital but in research centers while the latter is hospital based, that medical laboratory scientists are employed in clinical laboratories not for the practice of medical laboratory science but for the conduct of sample analysis for the clinical laboratory medical practitioners (pathologists) who are in short supply and thus are not available for both analysis of all the patients samples and still do other more tasking duties of the pathologists as it touches patient diagnosis, treatment and research ( as contrasted with medical laboratory diagnosis, treatment and research ), that while medical laboratory science deals with human and animal samples generally, that pathology deals with specific human patients samples, that while medical laboratory science comprises (a) analysis of human and animal specimens (b) production of biologicals (c) design of equipment and (d) fabrication of those designed equipment, clinical laboratory (pathology) practice has no business with (a) analysis of animal specimens (b) production of biologicals (c) design of equipment and (d) fabrication of those designed equipment, that medical laboratory scientists have abandoned medical laboratory practices because of lack of employment opportunities in the field of medical laboratory science in Nigeria, and instead insinuated themselves into clinical laboratory medical practice(pathology). This has not only occassioned unnecessary professional conflicts, but has also made Nigerian hospitals to depend on foreign supplies of chemicals, biological, fabrication, designs, equipment, reagents and chemicals. There is also a dearth of implemented homebased research findings.
©Awkadigwe Frederick Ikenna 2016.
Mr Awkadigwe Frederick Ikenna (MBBS NIG, LLB NIG) is a Resident in Obstetrics and Gynaecology.
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