Contributed By Victor Obong Atang
INTRODUCTION
According to the World Health Organization, every human being has the right to the highest attainable standard of physical and mental health and Countries have a legal obligation to develop and implement legislation and policies that guarantee universal access to quality health services and address the root causes of health disparities, including poverty, stigma and discrimination[1].
In recognition of this, the Constitution of the Federal Republic of Nigeria 1999, (as amended), as well as other statutes such as the National Health Act, of 2014, makes copious provisions relating to health rights and the right to seek redress in Court if health users right are breached. However, most people are either unaware of such rights or are incapacitated with regard to taking steps to enforce such rights. This article aims to examine and appraise the right to health in Nigeria vis-à-vis the existing legal framework and to further explore options for enforcement of health rights.
Understanding Health and Patient Rights
Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity and the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion and political belief, economic or social condition.[2] On the other hand, ‘patient rights’ is a general statement adopted by most healthcare professionals, covering matters such as access to care, patient dignity, confidentiality, and consent to treatment. To provide patients with high-quality healthcare, it is imperative that they understand their rights about their health, and that the government supports patient safety and patient-centered care. However, it is imperative to note that the right to health is not the same as the right to be healthy[3]. There is a widespread misperception that our health must be guaranteed by the State[4]. Good health is influenced by several factors, including an individual’s socioeconomic status and biological composition, genetics etc., which are not directly within the authority of States. Importantly, the right to health refers to the freedom to enjoy a range of products, services, facilities, and environments that are required for its implementation. Because of this, the term “right to the highest attainable standard of physical and mental health” is a more appropriate description of it than “an unconditional right to be healthy[5].”
Right to Health in Nigeria
Nigeria, as a signatory to numerous international treaties, affirms its commitment to recognizing and upholding the right to health. Among these treaties, the primary ones include the International Covenant on Economic, Social and Cultural Rights (ICESCR)[6], the Convention on the Elimination of all Forms of Discrimination (CERD),[7] the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW),[8] and the Convention on the Rights of the Child (CRC). Additionally, Nigeria has ratified two health-related civil and political rights treaties, namely the International Covenant on Civil and Political Rights (ICCPR)[9] and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[10]
At the regional level, the Right to Health is further reinforced under the African Charter on Human and Peoples’ Rights, 1981.[11] Domestically, the guarantee of the Right to Health is enshrined within Chapter 2 and Chapter 4, particularly Section 33, of the Constitution of the Federal Republic of Nigeria 1999 (as amended), as well as in legislation such as the National Health Act, 2014, among others.
In Nigeria, the right to life as provided in section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), is interwoven with the health rights provided in the National Health Act, 2014, since the essence of health rights is to prevent death and preserve life. Should death occur, the victim will have the right to seek redress in court.[12] Additionally, Section 17 (3) of the Constitution states in paragraphs c & d states;
The state shall direct its policy towards ensuring that the health, safety and welfare of all persons in employment are safeguarded
there are adequate medical and health facilities for all persons
It is however regrettable that the enforcement of the above constitutional provision which is contained in Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is elusive as the same is caught up with the doctrine of non-justiciability as enshrined in section 6(6)c[13] of the constitution. However, it is a trite principle that to every general rule, there is an exception. Thus, the principle of non-justiciability of Chapter 2 of the 1999 Constitution is subject to certain exceptions. Foremost amongst these exceptions is that the National Assembly can enact specific legislation that gives legal backing to any of the directive principles and their legislations shall be justiciable. This means that where there is a law passed to implement a particular directive principle, individuals can challenge the government’s compliance with that law in Court[14] Consequently, recourse is sought in the National Health Act, enacted in 2014.
Furthermore, Part III of the Health Act encompasses provisions concerning the rights and obligations of users and healthcare personnel which are briefly examined below
Right to Emergency Medical Treatment
The National Health Act, of 2014 grants all Nigerians the right to obtain healthcare at any Nigerian medical facility, particularly in cases of a medical emergency. Section 20 of the Act states as follows;
A health care provider, health worker or health establishment shall not refuse a person emergency medical treatment for any reason.
A person who contravenes this section commits an offence and is liable on conviction to a fine of N100,000.00 or to imprisonment for a period not exceeding six months or to both.
The above statutory provision implies that victims of accidents, physical violence involving weapons, etc., who are to be provided with emergency medical service due to the urgency of the situation are to be attended to as a matter of right. It is important to note that it has become a practice in Nigeria, albeit a repulsive one, for health personnel to request for police report as a pre-condition for the treatment of emergency cases[15] and this is clearly against the tenet of the law and it is for this reason that Section 1 of the Compulsory Treatment and Care of Victims of Gunshot Act, 2017, provides to the effect that every hospital in Nigeria whether public or private shall accept or receive, for immediate and adequate treatment with or without police clearance, any person with a gunshot wound.
Right of Confidentiality
Confidentiality refers to the obligation of not disclosing data about information delivered in confidence to unauthorized third parties. This duty was codified in the Hippocratic Oath in the 4th century BCE and is still one of the core principles of medical ethics. In health settings, confidentiality pertains to information that a person shares with health professionals with the understanding, express or implied, that the information would not be disclosed to a third party. Section 26 of the National Health Act proves as follows;
All information concerning a user, including information relating to his or her death status, treatment or stay in a health establishment is confidential
Subject to section 27 of this Act, no person may disclose any information contemplated in subsection (1) unless-
The user consents to the disclosure
A court order or any law requires that disclosure
In the case of a minor, with the request of a parent or guardian
In the case of a person who is otherwise unable to grant consent upon the request of a guardian or representative
or non-disclosure of the information represents a serious threat to public health.
Based on the foregoing analysis, it is unequivocally established that healthcare personnel should not, under any circumstances, disclose such information to third parties without the consent of the patient. Therefore, confidentiality serves as a vital foundation for fostering trust between patients and medical professionals. Patients are inclined to share health-related information when they have confidence in their healthcare providers. Physician-patient relationships built on trust facilitate better communication and enhance the quality of healthcare interactions.
Healthcare professionals who adhere rigorously to their privacy obligations and take the initiative to communicate confidentiality guidelines are more likely to have patients who provide honest reports of their symptoms. This enables doctors to make well-informed decisions, render more accurate diagnoses, and develop personalized treatment plans that ultimately result in improved health outcomes[16].
Right to Full Disclosure of Patient’s State of Health
It is the right of the health user to know the relevant information about his health status and the necessary treatment to be administered.[17] Disclosure of the health status of the patient should be put into consideration for the best interest of the health user and this right also includes the range of diagnostic procedures and the treatment options available to the health user such as the benefits, risks, costs, and consequences generally associated with each option[18]
Legal Redress Available to Patients
The 1999 Constitution of the Federal Republic of Nigeria empowers the court with powers to determine matters relating to civil rights and obligations of the person under the constitution, which may include criminal matters.[19] In line with the constitution, the National Health Act also provides for the right of the patient to lodge a complaint when any of those rights discussed above are infringed upon.[20] The right to seek redress could be done administratively by making a complaint to the healthcare establishment, or by filing a suit in the Court of competent jurisdiction, or by making a petition to the Medical and Dental Council of Nigeria[21], which is the body regulating the affairs of medical doctors and dental practitioners.
Also, where it is clear that medical personnel such as a surgeon have been negligent while carrying out an operation on a victim of a medical emergency, an action in negligence will lie. However, for a claim of negligence to succeed, the Plaintiff must prove that the defendant owes or owed him a duty of care and was in breach of that duty.[22]
Conclusion
Having examined the issue relating to health rights in Nigeria, it has been established that, in line with the recommendations of the World Health Organization, every country has a legal obligation to develop and implement legislation and policies that guarantee universal access to quality health services. Nigeria has enacted legislation aimed at ensuring the protection of health rights, such as the National Health Act. Furthermore, the findings of this article have established that several options can be utilized in seeking redress where an individual’s health rights have been violated. These options include instituting legal action in court, filing complaints at the appropriate health establishment, as well as petitioning the Medical and Dental Council of Nigeria.
Footnotes
Source: loyalnigerialawyer
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