Right to Health Under the Nigerian Law: The Justiciability and Otherwise

Abstract:

To every human being, a positive health is the basis for a long life and it is a matter of immense concern. This is so regardless of age, socio-economic status, gender or ethnicity. A positive and stable health status is a very basic and essential asset to any man. Ill health on the other hand would impede productivity and embarking on responsibilities or from full participation in daily activities or obligations. This therefore, makes individuals to attain an appreciable state of well-being. Hence, when the well-being of a person is discussed, the health of that person is actually of specific interest. The question that then begs for an answer is “ whether good health is so essential to human existence, why then has the right to health not being regarded as a fundamental part of our human rights under the Nigerian Constitution as per Chapter IV of the said constitution”? Argument in this light relates to the “mother rights” i.e “  the right to life” with the  right to dignity of human person” clearly interconnected. The right to enjoy a high standard of health can therefore be regarded to be intertwined with the most basic right that accrues to every human.

*Health

*Human Right

*Health as a Human Right

*International Law

INTRODUCTION/DEFINITION OF TERMS:

HEALTH:

The World Health Organisation (WHO) Constitution  defines health broadly as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”

The Black’s Law Dictionary defines health as “the quality, state or condition of being sound or whole in the body, mind and soul especially freedom from pain or sickness”… it further adds or defines it as the relative quality, state or condition of one’s physical well-being, whether good or bad”

The definition of health is rather vague, hence no definition is provided in scientific studies and it was not until 1986 that the WHO further clarified its perspective on what health is, stating that, health is “ a resource for everyday life, not the objective of living. Health is a positive concept emphasizing social and personal resources as well as physical capacities”

Cambridge Advanced Dictionary in trying to define health, relates it to; “the condition of the body and the degree to which it is free from illness or the state of being well”.

The definitions above have thus linked health to a state of relative well-being on all perspectives of human composition, this therefore means that, for an individual to carry out his daily obligations, routines or engage in productive exercises in his daily living, he must be in good state of health.

HUMAN RIGHTS

Cranston defines human rights as “something of which no one may be deprived without a great affront to justice. There are certain deeds which should never be done, certain freedoms which are suppressive sacred.” Osita Ezegives his own perception by stating that; “human rights represents demands or claims which individuals or groups make on society, some of which are protected by law and have become part of lex latta while others remain aspirations to be attained in the future” Prof. Umozuruke provides an interesting definition thus; “…..claims which are invariably supported by law, made on the society, especially on its official managers, by individuals or groups on the basis of their humanity. They apply regardless of race, colour, sex or other distinction and may not be withdrawn or denied by governments, people or individuals…..they are also rights which every individual claims or aspires to enjoy irrespective of his colour, race, religion or status in life.”

A further explanation was given by Denton-west, JCA in the  case of Bobade Olutide & ors v. Adams Hamzat & ors thus: “…now, I understand, human rights are moral principles or norms that describe certain standards of human behaviour, and are regularly protected as legal rights in municipal and international law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same rights and opportunities embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want them to yourself. Thereby, it is safe to say that these rights impose on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances”

These are various definitions by scholars in their various field who have posited these definitions based on their different fields, exposure and understanding of the concept; with some seeing the rights as entitlements of individuals that they could claim from the institutions that govern them while some had a preference to explaining rights as these benefits enjoyed by citizens which are provided for by law. Therefore, is the health of a citizen covered by these definitions all laid out above? I doubt.

HEALTH AS A HUMAN RIGHT

The right to health has been outlined in various international legal instruments with attendance arguments and debates on the actual rout to interpreting and applying the “right to health” as a result of the lapse in the applying the “the right to health” as a result of the lapse in the definition of “health” minimum entitlements of a person which could be deemed as a part of right to health, where institutions are responsible for ensuring a right to health and what degree should the political institutions invest financial and material resources to ensure the protection of this right and particularly the  varying level of economic/ financial power possessed by nations of the world to ensure the recognition and possible inclusion/implementation of the requirements of attaining an appreciable standard in the “right to health”

INTERNATIONAL LAW AND THE RIGHT TO HEALTH

Enjoying the highest attainable standard is recognised in international human rights law, for clear understanding therefore, the Committee on Economic, Social and Cultural Rights perceives this in a broader perspective, recognising it as;

“an inclusive right extending not only to timely and appropriate health care but, also to the underlying determinants of health, such as access to safe and portable water and adequate sanitation, an adequate supply of safe food, nutrition and access to health related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels”. The Universal Declaration of Human Rights (Universal Declarations) provides that; “everyone has the right to a standard of living adequate for the health and well-being of himself and his family…”

The International Covenant of Economic & Social Rights (ICESR) states that;

1. The states, parties to the present covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health
2. The steps to be taken by the states parties to the present covenant to achieve the full realisation of this right shall include those necessary for;f
3. The provision for the reduction of the stillbirth rate and infant mortality and for the healthy development of the child
4. The improvement of all aspect of environmental and individual and industrial hygiene
5. The prevention, treatment and control of epidemic, occupational and other diseases
6. The creation of conditions which would assure to all medical treatment/service and medical attention in the event of sickness.

The Convention on the Right of the Child (1990) states that;

“States parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and realisation of health. States parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.”

The Convention on the Elimination states that; “In compliance with the fundamental obligations laid down in article 2 of this convention, states parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin to equality before the law, notably in the enjoyment of the following rights;

(IV) The right to public health, medical care, social security and social services.”

The Convention on the Elimination of All forms of Discrimination against women (CEDAW) states that; “States parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure on all basis of equality of men and women have access to health care services, including those related to family planning”

It further states that; “states parties shall take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women that they participate in and benefit from rural development and in particular, shall ensure to such women the right

1. to have access to adequate health care facilities including information, counselling and services in family planning;”

Furthermore, Article 25 of the Convention on the rights of persons with Disabilities states that “states parties recognised that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability. States parties shall take all appropriate measures to ensure access for persons with disabilities to health services that are gender-sensitive, including health related rehabilitation”.

The International Labour Organisation (ILO) recognises and addresses issues on the right to health, noting that, the organisation is “devoted to advancing opportunities for women and men to obtain decent and productive work in conditions of freedom, equity, security and human dignit”There also has been recognition of the right under regional laws recognised and already domesticated under the Nigerian legal system. A typical example is the African Charter on Human & Peoples Right (ACHR) the preamble to the African Charter provides thus:

“Civil and political rights cannot be disassociated from economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights”

It is interesting to note that, the right to health under the Nigerian constitution is reflected under chapter two of the 1999 Constitution of the Federal Republic of Nigeria (as amended) forming part of the fundamental objectives and directive principles of state policy are not justiciable, they are, however, enforceable through the African Charter. The Charter in Article 16 states;

1. Every individual shall have the right to enjoy the best attainable state of physical and mental health
2. States 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.

THE POSITION OF THE NIGERIAN LAW IN RELATION TO RIGHT TO HEALTH

Having domesticated the African Charter in Nigeria, Nigerian citizens are entitled to make claims to enforce their right to health in the Nigerian courts. Albeit that, the African charter is contrary to the fundamental objectives and directive principles of state policy which are a set of non-justiciable provisions under the constitution of Nigeria. They are clearly sanctioned under ACHPR. The 1999 Constitution of Nigeria (as amended) in section 12 makes provision that international treaties have the force of law by the National Assembly A Federal High Court sitting in port Harcourt partially justified the African Charter affirming that, the applicants who are prisoners had the right to the best attainable standard of physical and mental health. His lordship Nwodo, J. held that; “the government of this country has incorporated the African charter on human and peoples’ rights Act cap 10 as part of the laws of this country”

The Court of Appeal held thus: “….the African Charter is applicable in this country. The charter entrenched the socio-economic rights of person. The court is enjoined to ensure the observation of these. A dispute concerning socio-economic rights such as the right to medical attention requires the court to evaluate state policies and give judgement consistent with the constitution.”

In consideration of the right to life and health of the applicants, the learned justice held further that the right to health was justiciable, he noted;

“The applicants have the right to life, however, the fact is that, the applicants are in custody of the second to fourth respondents awaiting trial and suffering from illness. The second to fourth respondents are under a duty to provide medical attention for them; failure to do is non-compliance with the provisions of section 8 of the prison Act and Article 16 of African Charter on Human and Peoples’ Rights.”

In Ogugu v. state the Supreme Court recognised and enforced this right, when it held that “it is apparent that the Human and Peoples’ Rights of the African Charter are enforceable by the several high court depending on the circumstances of each case and in accordance with the rules and parties of each court.”

The Supreme Court further echoed this reasoning in General Abacha & ors  v. Gani Fawehinmi holding that, the African Charter which has been adopted and assimilated into our domestic laws in Nigeria and such becomes an obligation to be enforced by the courts. However, the Supreme Court also stated that, the ACHPR cannot supersede the Constitution of the Federal Republic of Nigeria 1999 (as amended) stating that;

“The constitution is the supreme law of the land; it is the grundnorm. It supremacy has never been called to question in ordinary circumstances. Thus any treaty enacted into law in Nigeria by virtue of section 12 (1) of the constitution is circumscribed in its operational scope and extent as may be prescribed by the legislature.”

THE INTERRELATIONSHIP BETWEEN RIGHT TO HEALTH AND THE RIGHT TO MEDICAL TREATMENT.

Right of a human being to live or his right to have life necessarily includes his right to have medical treatment when he needs one; hence, anybody that deprives him of such right will be held to be in breach of Section 33 of the 1999 constitution of Nigeria ( as amended)

In Barnett v. Chelsea & Kensington Hospital Management Committee some night security guards had taken ill after drinking poisonous tea and were rushed to the respondents’ hospital for treatment. Although, they went to the emergency casualty department of the hospital, no doctor attended to them and they left in that state and later died. In finding the hospital management liable, Nield J. held that, since the patients had entered the hospital without hindrance, the management owed the patients a duty of care as a body that ran casualty department to have them treated, which may have prevented them from untimely death. He concluded, however that, if the hospital had closed its doors and had said that no patients would be received or entertained, it would not have been liable if the patients had forced themselves in but were denied treatment. In such case, the hospital could not have been held to owe the patients any duty of care.

Similarly, once a patient is received or admitted for treatment in a hospital or clinic, whether for a fee or for free, the hospital or clinic acting through its personnel, owes such a duty of care to the patient to its best; if it fails in this regards and death occurs, the hospital and the staff will both be liable for such death. Thus; Denning L.J; held in Cassidy v. Ministry of Health ( Fahrni, Third party) as follows:

“In my option, authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self-same duty as the humblest doctor. Whenever they accept a patient for treatment, they must use reasonable care and skill to cure of his ailment. The hospital authorities cannot, of course, do it by themselves. They have no ears to listen through the stethoscope and no hand to hold the knife. They must do it by the staff which they employ. And if their staff are negligent, as if anyone else who employs others to do his duties for him. Is there any possible difference in law, I ask, can there be, between hospital authorities who accept a patient for treatment and railway or shipping authorities who accept a passenger for carriage? None whatever, once they undertake the task, they come under a duty to use care in the doing of it, and that is so whether   they do it for reward or not.”

In the same vein Stuart Smith, L. J. held in Capital and Counties v. Hats County Council thus: “there is no doubt that once the relationship of doctor and patient or hospital authority and admitted patient exists, the doctor or the hospital owe a duty to take reasonable care to effect a cure, not merely to prevent further harm. The undertaking is to use the special skills which the doctor and the authorities have to treat the patient”

His lordship however, distinguished it thus: “a doctor who happened to witness a road accident will very likely go to the assistance of anyone injured, but he is not under any legal obligation to do so(save In certain limited circumstances which are not relevant) and the relationship of doctor and patient does not arise. If he volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse”.

Similarly, it has been held that, a medical doctor retained by an organisation to advise such organisation on the health condition of an applicant who wants to be employed by an organisation does not owe a duty of care to such an applicant; as its duty is just to fulfil its retainer; for the doctor does not by examining the applicant, come under any general duty of medical care to the applicant.” But he is “under a duty not to damage the applicant in the cause of the examination ( X & ors v. Bedfordshire CCM In Nigerian case bordering on damages for negligence resulting to death, even though the court of Appeal reasoned that the medical records kept by the hospital which was treating him were poor, hence resulted in a breach or negligence, it concluded that, from the clinic folder kept by the said hospital and the evidence tendered in court, the medical staff had done it very professionally best to keep the deceased alive, hence the hospital was not guilty of negligence see University of Ilorin Teaching Hospital v. Abegunde 

IS REFUSAL OF THE DECEASED TO TAKE APPROPRIATE MEDICATION A VIOLATION OF RIGHT TO HEALTH? AND WHOSE RIGHT CAN BE SAID IS VIOLATED?

Refusal of a person to take appropriate medication by medical advice, including his election to die gracefully are all matters that eliminate the element of intention” on the part of person taking care of him, medically or otherwise. These considerations arose in the case of Medical & Dental Practitioners Disciplinary Tribunal V. Emewulu. In this case, the deceased, a 29 years old lady and her husband belonged to the Jehovah Witnesses Sect. the 1st respondent, a Medical Doctor, also belonged to the sect. From the evidence at the trial of the 1^st respondent before the appellant, the deceased needed blood transfusion to sustain her life. She and her husband had rejected this medical advice from the first clinic where she was admitted and had indeed signed a paper discharging the first doctor from liability. When they took her to the 1^st respondent’s clinic, he also duly warned them on the risk of refusing blood transfusion. Yet, the duo were still intransigent and even signed yet another paper (exhibit “G) discharging the 1^st respondent from liability. The 1^st respondent therefore, commenced treatment of the deceased via other modes of medication. The deceased died shortly thereafter. The 1^st respondent was, however, charged before the appellant for, inter alia, refusing to transfuse blood to save life, because of his religious beliefs. He was also accused of refusing or failing to transfer deceased to another hospital or clinic where blood transfusion would have been carried out on her. The appellant found the 1^st respondent guilty and suspended him from practice for six months. The 1^st respondent appealed to the Court of Appeal, which allowed his appeal and set aside the findings of the appellant on appeal by the appellant to the Supreme Court this court dismissedgrounds the appeal and affirmed the judgment of the court of Appeal. The Supreme Court held that the deceased,   an adult, having elected to allow her life just slip away like that on religious ground, the 1^st respondent ought not to have been held responsible.

Also, in the case of Medical & Dental Practitioners Disciplinary Tribunal V. Okowkwo and Sideway V. Board of Governors, the Supreme Court held that once an adult patient opts not to accede to medical treatment on religious ground, the doctor or medical Centre treating such a patient becomes helpless; and that if the patient dies, the doctor or hospital will not be held responsible. It held that it does not matter that the doctor himself for similar religious reason, does not believe in such a treatment.

PARENTS REJECTING MEDICAL TREATMENT FOR THEIR CHILDREN, IS IT A VIOLATION OF THE CHILDREN’S RIGHT TO HEALTH?

It is a different ball game when the patient is a little child and instead of personally objecting to medical treatment, it is the parents that do so without his informed consent. In Esabunor V. Faweya the Court of Appeal, relying on Section 33 (1) of the Constitution, refused to quash an order issued by the magistrate directing the police to take the Plaintiff/Appellant (Suing by his next friend, his mother) for blood transfusion. The plaintiff’s mother had withheld her consent, claiming that her faith as a Jehovah’s Witness was against blood transfusion. Galinje, JCA, who delivered the lead judgment, held tersely yet forcefully on page 810 thus:

Although, the 2^nd appellant had absolute right to choose a course for life, she has not got that corresponding right to determine whether her son should live or die on account of her religious belief.   

Even as mentally retarded child has right to live and nobody including his parent is allowed to terminate that life. Thus in Re B (A minor) (wardship: Medical Treatment)doctors had   indicated that a baby girl born with Down’s  Syndrome, whose intestine was also blocked, would die in a matter of days if no operation was carried on her to remove the blockage. Evidence was tendered to show   that if the operation was to be successfully carried out, she was to have life expectance of 20-30 years. Her parent apparently, not wanting to keep a mentally retarded child, refused to give their consent to the operation and the court made the little girl a ward of the court. It however, removed its earlier order directing the operation to be undertaken. In allowing the appeal by the Public Health Authority, the English Court of Appeal held that even though the child, if operated upon and allowed to live, would have lived as a person who was “severely and mentally handicapped” the sanctity of life ought to be uppermost in the mind of the court. Templeman, L.J, held that there may be cases of severe proved damage  where the future is so certain and where the life of the child  is so bound to be full of pain and suffering that the court might be drive to different conclusion; but that in the present case, the choice before the court was whether to allow an operation to take place which may result in the child living for 20 or 30 years as a mongoloid or whether to terminate the life of a mongoloid child because she also has an intestinal complaint. He concluded thus:

Faced with that choice I have no doubt that it is the duty of the court to decide that the child must live. The judge was much affected by the reasons given by the parents and came to conclusion that their wishes ought to be respected. In my judgment, he erred in that the duty of the court is to decide whether it is in the interest of the child that an operation should take place. The evidence in this case only goes to show that if the operation takes place and is successful the child may live the normal span of a mongoloid child, and it is not for this court to say that life of that description ought to be extinguished. Accordingly, the appeal must be allowed and the local authority must be authorized themselves to authorities and direct the operation to be carried out on the little girl.

The court of Appeal, however, refused to follow this decision in the latter case of Re C (Aminor) Wardship, Medical Treatment) In this case, the little girl, C. was sixteen weeks old and had been born prematurely with a severe disease condition known as severe hydrocephalus, wherein, excess fluid accumulated in her brain. This resulted in her experiencing grave mental and physical debilitations. The trial judge held that given this condition, it was proper and lawful to terminate her life. He reasoned that the medical evidence adduced satisfied him that the danger to the cortex of the brain was gross and abnormally severe; and that since it is the human cortex that distinguishes humans from other animals, there was “no prospect of a happy life for this child, sadly; no prospect whatsoever” He further found as follows:

There is, in the united opinion of the medical experts, no treatment which will alter that prognosis, and the prognosis is therefore one of hopelessness. I am therefore, dealing with a child massively handicapped by a mixture of severe or permanent brain lesions, blindness, and probable deafness and generalized spastic cerebral palsy of all four limbs.

He concluded, therefore that in the circumstances of this case, it was better, more peaceful and more dignifying to determine the life of that child at that stage. The official solicitor appealed but the court of appeal affirmed the trial court’s decision.

In Gillick V. West Morfork and Wisbech Area Health Lord Templeman dissenting-however, the House of Lords, in a case involving administering of contraceptives on a 16 year old, acknowledged, “dwindling parental authority” as a child grows up; and held per Lord Tullybelton (head opinion) on page 409 that provided the patient, a boy or girl, “is capable of understanding what is proposed, and of exercising his or her own wishes, I see no good reason for holding that he or she lacks the capacity to express them validly and effectively and to authorize the medical man to make the examination or give the treatment which he advises. He rationalized this position on the fact that “a minor under the age of 16 can, within certain limits, enter into a contract” and that he or she can sue and be sued and also give evidence on oath.

CONCLUSION

It would then seem clear that laws on human rights of international acclaim, which are domesticated, may extend the rights which are provided for under the Nigerian constitution. The writer argues that, since Nigeria has voluntarily accepted to domesticate the African Charter, then, the country has inferably accepted the applicability and enforceability of such rights (socio-economic rights, including right to health) as human rights.

The attempt to exposit on the Nigerian laws and the right to health in the country is the Nigerian Health Insurance Act cap N42 LFN 2004, the National Health Act 2014 and a host of other laws. From the foregoing therefore, Nigeria, and all the concerned should rise up and protect their right to health using the available legal means.

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BY I.T. IMOBAN ESQ.  LL.B (HONS.) BL, LL.M (in view)

A PRIVATE LEGAL PRACTITIONER OF I.T IMOBAN & CO Imo Housing/Umuguma Road (Area New D) Opp. Royal Reception Hotels, OWERRI, IMO STATE, NIGERIA

 PHONE NUMBER: 07067765968

EMAIL: imobanteryilaisaac@gail.com

Source: Barrister