Nigeria’s Patients’ Bill of Rights: Reality vs. Hype

By Abubakar-D.-Sani

Introduction

The public optimism with which the introduction of a Bill of
Rights for patients in Nigerian hospital was received, appears to
have been somewhat dampened by the reality that, while the Bill is
all very well on paper, its effective implementation or enforcement
may be another kettle of fish altogether. This situation is
informed by a number of factors, not least of which are the
following issues: are the rights enshrined in the Bill justifiable;
in other words, can they be enforced by a patient through judicial
proceedings? If so, what are the mechanisms available for such
enforcement? Is there any ‘to-go’ agency of government responsible
for implementing the rights? Is any government agency charged with
tracking the Bill? Beyond the Federal level, are the rights
enforceable in State government-owned or privately-held medical
facilities? We shall attempt some answers anon, but first . . .

What are Patients’ Bill of Rights?

According to Wikipedia, a patients’ Bill of Rights is a list of
guarantees for those receiving medical care; it may take the form
of a law or a non-binding declaration. Typically, the bill
guarantees, inter alia, patient information, fair
treatment and authority over medical decisions. In Nigeria, the
Bill (which was launched by Vice-President Yemi Osinbanjo, SAN, in
2018) is simply an aggregation of rights that already exist in
other instruments, such as the 1999 Constitution, the
African Charter, the Child Rights Act, the Consumer Protection
Council Act, the Freedom of Information Act, the National Health
Act, etc.

Statutory Over-view

It is axiomatic that the focus of the Bill is the guarantee of
the right to health. A few words about this right will be
appropriate. The World Health Organization (1946) defined the right
to health as “the enjoyment of the highest attainable standard
of health, that should be available, physically and economically
accessible, acceptable by medical ethics standard and of quality to
all – regardless of race, religion, political belief, economic or
social condition”.

The provisions of Section 17(3)(d) of the 1999
Constitution (though – like other parts of Chapter
II of the Constitution – are generally not justiciable)
enjoin “the State (to) direct its policy towards
ensuring that there are adequate medical and health facilities for
all persons”. These are complemented by Article XVI of
the African Charter which provide that “every
individual shall have the right to enjoy the best attainable state
of physical and mental health”, adding, for good measure, that
“State parties to the present Charter shall take the necessary
measures to protect the health of their people and to ensure that
they receive medical attention when they are sick” unlike
Chapter II of the Constitution, the African Charter is enforceable
in our courts: vide the African Charter (Ratification and
Enforcement Act, 1981).

Additional enforcement mechanism (in relation to the Charter,
and the Fundamental rights to life, dignity of the human person and
liberty under Sections 33, 34 and 35 of the
Constitution, respectively, which impinge on health care
rights) is provided under the Fundamental Rights
(Enforcement Procedure) Rules 2009. In MUSTAPHA
vs. GOV. OF LAGOS STATE (1987) LPELR 1931, the Supreme
Court declared that the fundamental rights provisions (of the
Constitution) encompass all mankind and attach to a man because of
his humanity. The capacity of the individual to enforce them has
been settled in a myriad of cases.

Article XXVI of the Child Rights Act 2005
contains similar provisions, this time, in relation to children –
which the Act defines as any person under the age of18.
Additionally, Section 1(1)(c) of the National Health Act,
2014, enjoins (all) Governments in Nigeria “to provide
the best possible health services”.

The Rights

The rights enshrined in the Nigerian Patients’ Bill are as
follows:

1. Access to Information
i. Right to relevant information in a language and manner the
patient understands including the diagnosis, treatment, other
procedures and possible outcomes (this right is also provided for
in Article IX of the African Charter which stipulates that “every
individual shall have the right to receive information”)
ii. To fully participate in implementing the treatment plan and
making decisions.

2. Patient-Related Information
i. Right to timely access to detailed and accurate medical records
and available services (Article IX of the African Charter).
ii. Access to records of the identity, skills and credentials of
treating professionals and care providers published by the
Federal/State Ministry of Health or other relevant authorities.

3. Fee-Related Information
Right to transparent billing and full disclosure of any costs,
including recommended treatment plans (Article IX of the African
Charter).

4. Confidentiality
Right to privacy and confidentiality of medical records unless
disclosure is vital and in the interest of public health in
accordance with prevailing laws (Section 37 of the 1999
Constitution).

5. Quality of Care
i. Access to clean, safe and secure healthcare environment.
ii. Access to equitable quality care and care-givers, irrespective
of disability.

6. Patient’s Dignity
i. Right to be treated with respect, regardless of gender, race,
religion, ethnicity, allegations of crime, disability or economic
circumstances (Section 42 of the 1999 Constitution and Articles IV
and V of the African Charter)
ii. That prior wishes of the patient or in the absence of same, of
the next-of-kin (where legally applicable) are respected to the
fullest extent practicable during last offices (at the time of
death) including cultural or religious preferences, to the extent
consistent with extant laws including Coroners laws.

7. Access to Emergency Care
Right to receive urgent, immediate and sufficient intervention and
care, in the event of an emergency, prioritizing such needed
attention over other factors including cost and payment, as well as
law enforcement requirements (Article XVI of the African
Charter).

8. Visitation
Right to receive visitors including for religious purposes in
accordance with prevailing rules and regulations (Articles Xi and
XII(i) of the African Charter and Sections 40 and 41 of the
Constitution).
9. Patient’s Refusal of Care
i. Patients at all times, retain the control of their person and
must be informed of their power to decline care, subject to
prevailing laws and upon full disclosure of the consequences of
such a decision (Section 35 of the Constitution and Article VI of
the African Charter).

ii. Patients have the right to consent or decline participation
in medical research, experimental procedures or clinical trials in
the course of treatment (Section 35 of the Constitution and Article
VI of the African Charter).

10. Interruption of Service by Providers
i. To be informed about impending interruption or disengagement of
services of primary or attending professionals responsible for
patient’s care.
ii. Methodical and practical transition of treatment for patient’s
safety and continuity of care.

11. Complaints:
To express dissatisfaction regarding service and/or provider
including personnel changes and abuse. (Section 39 of the
Constitution).

Apparently for the sake of balance, these rights are
complemented in the Bill by a number of patients’ responsibilities
as well as those of healthcare providers which are, strictly
speaking, outside the scope of this work. Suffice it to say that
the assumption is that, as long as the patient “keeps his own part
of the bargain” (i.e., observes his responsibilities) on the basis
of quid pro quo, he (or she) would be fully entitled to
complain about violations of his or her rights under the BoR. So
much for precepts; what about the reality, in terms of the
mechanism(s), if any, provided for ensuring compliance with the
Rights?

Enforcement of the BoR

There are a number of structures and procedures in other laws –
not in the BoR itself – which can be beneficial (if not exactly
salutary) in terms of seeking redress for violations of the BoR. To
start with, medical or health practitioners themselves are bound by
a Code of Ethics which manifest in the legal principles dealing
with medical negligence. This is defined (Black Law Dictionary) as
the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation. In the
locus classicus of BOLAM vs.
FRIERN HOSPITAL MANAGEMENT COMMITTEE, the court
held that a doctor will not be liable for medical negligence if he
acted in accordance with a practice regarded as proper by a
responsible body of medical men, skilled in that particular art. In
other words, as noted by Jackson, Etti & Edu (August 2018), he
would only be liable if he acts otherwise.

However, a patient may challenge, through a civil suit, sub-par
service provided by a health-care facility which constitutes
medical negligence, for harm or injury incurred in the course of
treatment. Apart from this common law right, the National
Health Act (in Part III) also enjoins
health-care establishments to provide grievance mechanisms through
which patients may express complaints on the quality of services
they received at the facility. The Act requires officials of State
(such as Ministers, Commissioners of Health or Local Health
Authorities) to provide procedures for laying complaints.

The Federal Competition and Conserve Protection
Commission Act (FCCPC Act)

Additionally, a patient who is aggrieved by breach of any of the
rights under the BoR may challenge it through the mechanisms
provided in the FCCPC Act – apart from instituting disciplinary
proceedings against a medical practitioner/healthcare provider
under the Medical and Dental Practitioners Act.
The former provides a general legal mechanism for protecting
consumer rights in Nigeria. It was this mandate that informed the
FCCPC (formerly CPC) – in conjunction with other healthcare
stakeholders – to introduce the PBoR. Under the Act, a patient who
perceives that he or she has suffered loss, injury or damage may
complain in writing to seek redress through the FCCPC (complaints
are typically resolved between 1 and 45 days). There is provision
for a tribunal to review the Commission’s decision. Of course, this
right is co-terminus with the consumer (patient’s) right to seek
redress through civil action for compensation or restitution.

Servicom

Servicom (or Service Compact with Nigerians) is yet another
mechanism for protecting patient’s health-care rights. Servicom is
a means of promoting effective and efficient service delivery in
Government (Federal) Ministries, Departments & Agencies (MDAs) for
the purpose of ensuring customer (or patient) satisfaction and to
manage the performance-expectation gap between the Government and
citizens/other members of the public on issues of service delivery.
Launched in 2004, it is conceptualized to fight service failure by
ensuring that government organs deliver to the public, the services
to which they are entitled. Operating through a network of
ministerial units established in all MDAs, Servicom’s impact in the
health-care delivery system has been restricted to Government
(usually Federal-owned) University Teaching Hospitals. According to
a Report (Assessment of Service Compact (Servicom) on Public
Service Delivery in selected Federal Teaching Hospitals in Nigeria,
2004 – 2013) available at iprojecting@gmail.com^[1]), Servicom’s
intervention in two Federal University Teaching Hospitals (the
University of Nigeria, Enugu and the Nnamdi Azikiwe University
Teaching Hospital, Nnewi) reportedly resulted in an
“improvement in the services being delivered by (them)
as a (direct) result of (the)
study”.

Shortcomings of BoR

As Jackson, Etti and Edu noted, the PBoR “is not a statutory
instrument, hence it can only be enforced within the existing legal
framework”. Continuing, they observed that the rights listed
in the PBoR may (only) be enforced pursuant to the provisions of
extant laws which create similar rights and, in some cases,
stipulate penalties for breach of patients’ right, empowering the
courts, disciplinary tribunals and relevant government agencies to
(initiate) action for the enforcement of patients’ rights. Sadly,
apart from the general mandate of Servicom and the FCCPC on
consumer issues, no government agency is specifically charged with
either tracking or implementing the PBoR.

As for the applicability of the Bill to State-owned or private
healthcare facilities and providers, the FCCPC Act is clearly aimed
at activating the provisions of Section 17(3)(d)
of the Constitution, which, as previously noted,
enjoins the State to ensure that “there are adequate medical
and health facilities for all persons”. This provision is
ordinarily non-justiciable but it becomes so, if as provided by
Item 60(a) of the Exclusive Legislative List of the
Constitution, the National Assembly establishes and
regulates “authorities for the Federation or any part thereof
to promote and enforce the observance of the Fundamental Objectives
and Directives Principles contained in (Section 17, inter alia) of
the Constitution. What this means is that there is no
constitutional (or any other) bar to ‘stepping – down’ the
application of provisions of the FCCPC Act in so far as they are
deemed to apply to the rights of patients in State-owned and
privately-held medical facilities. In other words, the
FCCPC Act applies to the health-care rights of
patients across federal, state and private medical facilities.

Conclusion

The importance of an effective and enforceable Patients’ Bill of
Rights in the health-care delivery system of any nation cannot be
over-emphasized. This is because, in the words of Office of the
United Nations Commissioner for Human Rights “when the rights
to health-care are upheld, access to all other human rights is also
enhanced, triggering a cascade of transformative change”

Written by Abubakar-D.-Sani, e-mail:
xl4sure@gmail.com

By Abubakar-D.-Sani

Introduction

The public optimism with which the introduction of a Bill of
Rights for patients in Nigerian hospital was received, appears to
have been somewhat dampened by the reality that, while the Bill is
all very well on paper, its effective implementation or enforcement
may be another kettle of fish altogether. This situation is
informed by a number of factors, not least of which are the
following issues: are the rights enshrined in the Bill justifiable;
in other words, can they be enforced by a patient through judicial
proceedings? If so, what are the mechanisms available for such
enforcement? Is there any ‘to-go’ agency of government responsible
for implementing the rights? Is any government agency charged with
tracking the Bill? Beyond the Federal level, are the rights
enforceable in State government-owned or privately-held medical
facilities? We shall attempt some answers anon, but first . . .

What are Patients’ Bill of Rights?

According to Wikipedia, a patients’ Bill of Rights is a list of
guarantees for those receiving medical care; it may take the form
of a law or a non-binding declaration. Typically, the bill
guarantees, inter alia, patient information, fair
treatment and authority over medical decisions. In Nigeria, the
Bill (which was launched by Vice-President Yemi Osinbanjo, SAN, in
2018) is simply an aggregation of rights that already exist in
other instruments, such as the 1999 Constitution, the
African Charter, the Child Rights Act, the Consumer Protection
Council Act, the Freedom of Information Act, the National Health
Act, etc.

Statutory Over-view

It is axiomatic that the focus of the Bill is the guarantee of
the right to health. A few words about this right will be
appropriate. The World Health Organization (1946) defined the right
to health as “the enjoyment of the highest attainable standard
of health, that should be available, physically and economically
accessible, acceptable by medical ethics standard and of quality to
all – regardless of race, religion, political belief, economic or
social condition”.

The provisions of Section 17(3)(d) of the 1999
Constitution (though – like other parts of Chapter
II of the Constitution – are generally not justiciable)
enjoin “the State (to) direct its policy towards
ensuring that there are adequate medical and health facilities for
all persons”. These are complemented by Article XVI of
the African Charter which provide that “every
individual shall have the right to enjoy the best attainable state
of physical and mental health”, adding, for good measure, that
“State parties to the present Charter shall take the necessary
measures to protect the health of their people and to ensure that
they receive medical attention when they are sick” unlike
Chapter II of the Constitution, the African Charter is enforceable
in our courts: vide the African Charter (Ratification and
Enforcement Act, 1981).

Additional enforcement mechanism (in relation to the Charter,
and the Fundamental rights to life, dignity of the human person and
liberty under Sections 33, 34 and 35 of the
Constitution, respectively, which impinge on health care
rights) is provided under the Fundamental Rights
(Enforcement Procedure) Rules 2009. In MUSTAPHA
vs. GOV. OF LAGOS STATE (1987) LPELR 1931, the Supreme
Court declared that the fundamental rights provisions (of the
Constitution) encompass all mankind and attach to a man because of
his humanity. The capacity of the individual to enforce them has
been settled in a myriad of cases.

Article XXVI of the Child Rights Act 2005
contains similar provisions, this time, in relation to children –
which the Act defines as any person under the age of18.
Additionally, Section 1(1)(c) of the National Health Act,
2014, enjoins (all) Governments in Nigeria “to provide
the best possible health services”.

The Rights

The rights enshrined in the Nigerian Patients’ Bill are as
follows:

1. Access to Information
i. Right to relevant information in a language and manner the
patient understands including the diagnosis, treatment, other
procedures and possible outcomes (this right is also provided for
in Article IX of the African Charter which stipulates that “every
individual shall have the right to receive information”)
ii. To fully participate in implementing the treatment plan and
making decisions.

2. Patient-Related Information
i. Right to timely access to detailed and accurate medical records
and available services (Article IX of the African Charter).
ii. Access to records of the identity, skills and credentials of
treating professionals and care providers published by the
Federal/State Ministry of Health or other relevant authorities.

3. Fee-Related Information
Right to transparent billing and full disclosure of any costs,
including recommended treatment plans (Article IX of the African
Charter).

4. Confidentiality
Right to privacy and confidentiality of medical records unless
disclosure is vital and in the interest of public health in
accordance with prevailing laws (Section 37 of the 1999
Constitution).

5. Quality of Care
i. Access to clean, safe and secure healthcare environment.
ii. Access to equitable quality care and care-givers, irrespective
of disability.

6. Patient’s Dignity
i. Right to be treated with respect, regardless of gender, race,
religion, ethnicity, allegations of crime, disability or economic
circumstances (Section 42 of the 1999 Constitution and Articles IV
and V of the African Charter)
ii. That prior wishes of the patient or in the absence of same, of
the next-of-kin (where legally applicable) are respected to the
fullest extent practicable during last offices (at the time of
death) including cultural or religious preferences, to the extent
consistent with extant laws including Coroners laws.

7. Access to Emergency Care
Right to receive urgent, immediate and sufficient intervention and
care, in the event of an emergency, prioritizing such needed
attention over other factors including cost and payment, as well as
law enforcement requirements (Article XVI of the African
Charter).

8. Visitation
Right to receive visitors including for religious purposes in
accordance with prevailing rules and regulations (Articles Xi and
XII(i) of the African Charter and Sections 40 and 41 of the
Constitution).
9. Patient’s Refusal of Care
i. Patients at all times, retain the control of their person and
must be informed of their power to decline care, subject to
prevailing laws and upon full disclosure of the consequences of
such a decision (Section 35 of the Constitution and Article VI of
the African Charter).

ii. Patients have the right to consent or decline participation
in medical research, experimental procedures or clinical trials in
the course of treatment (Section 35 of the Constitution and Article
VI of the African Charter).

10. Interruption of Service by Providers
i. To be informed about impending interruption or disengagement of
services of primary or attending professionals responsible for
patient’s care.
ii. Methodical and practical transition of treatment for patient’s
safety and continuity of care.

11. Complaints:
To express dissatisfaction regarding service and/or provider
including personnel changes and abuse. (Section 39 of the
Constitution).

Apparently for the sake of balance, these rights are
complemented in the Bill by a number of patients’ responsibilities
as well as those of healthcare providers which are, strictly
speaking, outside the scope of this work. Suffice it to say that
the assumption is that, as long as the patient “keeps his own part
of the bargain” (i.e., observes his responsibilities) on the basis
of quid pro quo, he (or she) would be fully entitled to
complain about violations of his or her rights under the BoR. So
much for precepts; what about the reality, in terms of the
mechanism(s), if any, provided for ensuring compliance with the
Rights?

Enforcement of the BoR

There are a number of structures and procedures in other laws –
not in the BoR itself – which can be beneficial (if not exactly
salutary) in terms of seeking redress for violations of the BoR. To
start with, medical or health practitioners themselves are bound by
a Code of Ethics which manifest in the legal principles dealing
with medical negligence. This is defined (Black Law Dictionary) as
the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation. In the
locus classicus of BOLAM vs.
FRIERN HOSPITAL MANAGEMENT COMMITTEE, the court
held that a doctor will not be liable for medical negligence if he
acted in accordance with a practice regarded as proper by a
responsible body of medical men, skilled in that particular art. In
other words, as noted by Jackson, Etti & Edu (August 2018), he
would only be liable if he acts otherwise.

However, a patient may challenge, through a civil suit, sub-par
service provided by a health-care facility which constitutes
medical negligence, for harm or injury incurred in the course of
treatment. Apart from this common law right, the National
Health Act (in Part III) also enjoins
health-care establishments to provide grievance mechanisms through
which patients may express complaints on the quality of services
they received at the facility. The Act requires officials of State
(such as Ministers, Commissioners of Health or Local Health
Authorities) to provide procedures for laying complaints.

The Federal Competition and Conserve Protection
Commission Act (FCCPC Act)

Additionally, a patient who is aggrieved by breach of any of the
rights under the BoR may challenge it through the mechanisms
provided in the FCCPC Act – apart from instituting disciplinary
proceedings against a medical practitioner/healthcare provider
under the Medical and Dental Practitioners Act.
The former provides a general legal mechanism for protecting
consumer rights in Nigeria. It was this mandate that informed the
FCCPC (formerly CPC) – in conjunction with other healthcare
stakeholders – to introduce the PBoR. Under the Act, a patient who
perceives that he or she has suffered loss, injury or damage may
complain in writing to seek redress through the FCCPC (complaints
are typically resolved between 1 and 45 days). There is provision
for a tribunal to review the Commission’s decision. Of course, this
right is co-terminus with the consumer (patient’s) right to seek
redress through civil action for compensation or restitution.

Servicom

Servicom (or Service Compact with Nigerians) is yet another
mechanism for protecting patient’s health-care rights. Servicom is
a means of promoting effective and efficient service delivery in
Government (Federal) Ministries, Departments & Agencies (MDAs) for
the purpose of ensuring customer (or patient) satisfaction and to
manage the performance-expectation gap between the Government and
citizens/other members of the public on issues of service delivery.
Launched in 2004, it is conceptualized to fight service failure by
ensuring that government organs deliver to the public, the services
to which they are entitled. Operating through a network of
ministerial units established in all MDAs, Servicom’s impact in the
health-care delivery system has been restricted to Government
(usually Federal-owned) University Teaching Hospitals. According to
a Report (Assessment of Service Compact (Servicom) on Public
Service Delivery in selected Federal Teaching Hospitals in Nigeria,
2004 – 2013) available at iprojecting@gmail.com^[1]), Servicom’s
intervention in two Federal University Teaching Hospitals (the
University of Nigeria, Enugu and the Nnamdi Azikiwe University
Teaching Hospital, Nnewi) reportedly resulted in an
“improvement in the services being delivered by (them)
as a (direct) result of (the)
study”.

Shortcomings of BoR

As Jackson, Etti and Edu noted, the PBoR “is not a statutory
instrument, hence it can only be enforced within the existing legal
framework”. Continuing, they observed that the rights listed
in the PBoR may (only) be enforced pursuant to the provisions of
extant laws which create similar rights and, in some cases,
stipulate penalties for breach of patients’ right, empowering the
courts, disciplinary tribunals and relevant government agencies to
(initiate) action for the enforcement of patients’ rights. Sadly,
apart from the general mandate of Servicom and the FCCPC on
consumer issues, no government agency is specifically charged with
either tracking or implementing the PBoR.

As for the applicability of the Bill to State-owned or private
healthcare facilities and providers, the FCCPC Act is clearly aimed
at activating the provisions of Section 17(3)(d)
of the Constitution, which, as previously noted,
enjoins the State to ensure that “there are adequate medical
and health facilities for all persons”. This provision is
ordinarily non-justiciable but it becomes so, if as provided by
Item 60(a) of the Exclusive Legislative List of the
Constitution, the National Assembly establishes and
regulates “authorities for the Federation or any part thereof
to promote and enforce the observance of the Fundamental Objectives
and Directives Principles contained in (Section 17, inter alia) of
the Constitution. What this means is that there is no
constitutional (or any other) bar to ‘stepping – down’ the
application of provisions of the FCCPC Act in so far as they are
deemed to apply to the rights of patients in State-owned and
privately-held medical facilities. In other words, the
FCCPC Act applies to the health-care rights of
patients across federal, state and private medical facilities.

Conclusion

The importance of an effective and enforceable Patients’ Bill of
Rights in the health-care delivery system of any nation cannot be
over-emphasized. This is because, in the words of Office of the
United Nations Commissioner for Human Rights “when the rights
to health-care are upheld, access to all other human rights is also
enhanced, triggering a cascade of transformative change”

Written by Abubakar-D.-Sani, e-mail:
xl4sure@gmail.com