On The Brain Drain Bill And Migration Of Health Workers

By Jamiu Akolade

The internet has been agog recently with the news that the House of Representatives is considering a bill requiring locally trained medical doctors to practice for at least five years in Nigeria before being granted a full practice licence (the Bill). The rationale for the Bill is the excessive brain drain of doctors trained with public education subsidies and the negative impact this has on the health sector.

The criticism of this bill has largely focused on its likely infringement on the fundamental rights of medical doctors to migrate freely with their skills. Others have questioned if this bill is the solution to the problem of the ‘brain drain’ Nigeria faces.

While there are arguments for and against such positions (for instance, fundamental rights are not absolute and the National Industrial Court has upheld training bonds which restrict the use of labour subject to the test of reasonableness), I chose to analyse this development through the prism of the international response to the shortage of health personnel in developed countries.

In May 2010, as a response to the severe shortage of health personnel in developing countries and economies in transition caused by migration to more developed countries, the World Health Organisation (WHO) put together a Code of Practice for International Recruitment of Health Personnel (the Code). The Code provides ethical principles for the recruitment of health workers globally. Importantly, it discourages recruitment from countries facing critical shortages of health workers. It also encourages member states to enter into agreements to promote cooperation in the international recruitment of health workers with such agreements focusing on technical and funding assistance for developing countries.

Against the backdrop of the Code, the WHO maintains a Workforce Support and Safeguard List of countries with critical shortages of health personnel from which active recruitment is discouraged. The 2023 List has 55 countries (including Nigeria) with critical health personnel shortages based on: 1) a density of doctors, nurses and midwives below the global median (i.e., 49 per 10 000 population); and 2) a universal health coverage service coverage index below a certain threshold. While the Code is not mandatory, it certainly serves as a guide to countries recruiting health workers and in some cases e.g UK/Kenya, bilateral agreements have been signed outrightly banning the recruitment of health workers from the underserved country.

Why is this background relevant to the Nigerian Bill under consideration? It goes to show that cross-border migration (brain drain) is a global problem and the solutions employed internationally are similar in some respects to what the Nigerian Bill attempts to do. However, what I would like to see during the legislative process is a more holistic solution to the brain drain issue. This should include the infrastructure development, multilateral technical assistance and welfare provisions that are in the Code but missing from the Bill. There must be an incentive to remain in the country.

There should also be an acknowledgement (and exemption) of doctors who are trained at private expense. After all, since no subsidy is enjoyed in this instance, it is arguable that they should be restricted from exploiting their skills abroad.

Even in this instance, the public health safety interest derogation from fundamental rights contained in our constitution may capture such ‘privately trained’ doctors as the Honourable Speaker of the House of Representatives has hinted. The Nigerian Medical Association also needs to go beyond the rhetoric to lobby seriously during the public hearing of the Bill to at least reduce the restrictions years or provide some attractive alternatives to the government.

That said, there is merit in the pushback that the lasting solution is the creation of a better local working environment that would reduce the brain drain. To this, I agree but note that since talent mostly follows money (and better conditions) the battle for talent will continue to be to the detriment of poorer countries.

Jamiu Akolade is a legal practitioner and a trustee of The Employment and Labour Lawyers Association of Nigeria (ELLAN)

Source:TNL