The Superficial State of Telemedicine in The Nigerian Legal Parlance

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

INTRODUCTION

In 2000, a WHO report, based on its health indicators, ranked Nigeria at 187 out of the 191 member states in quality of healthcare [1] but this has since improved as the recent position stands at 163 out of 191 [2]. Coming home, the Nigerian Medical Association explains the reason for the low ratings as the current ratio of doctors to patients, which is one doctor to every three thousand three hundred patients [3]. This, however, only envisages a scenario where the doctors are evenly spread and not concentrated in the urban areas, as is, in fact, the case.[4]

While this presents a basis for embracing telemedicine practices, the idea isn’t novel to Nigeria, as it had already emerged in the late 20th century with notable endeavours such as the HealthNet project in 1980.[5] Another noteworthy telemedicine endeavour was in 2007 when the Federal Ministry of Health and the National Space Research and Development Agency (NASRDA) commenced action for launching a sub-network and remote terminal approach to healthcare, which began in March 2007 and was commissioned in January 2008.[6] Despite this length of time, the concept gained little attention until 2020 due to the COVID-19 pandemic, which allowed for social distancing in various areas, including healthcare.

Notwithstanding the global interest that it has garnered, there are still no clear laws that define the realm of such practice in Nigeria. The law, which is the wheel of society [7], is the defining element of the human social system and the absence of it will lead to chaos and anarchy [8]. It has not defined the state of affairs with regards to telemedicine. This then implies that the absence of law in the field of telemedical practices has left it amoebic and almost void and if the situation persists, it may degenerate into several socioeconomic, health, etc., complications [9].

WHAT IS TELEMEDICINE?

Telemedicine is described as distant healthcare, the employment of ICT for healthcare when distance is a barrier or discouraged[10]. It is the practice of receiving medical services from afar or the delivery of healthcare services remotely[11]. The World Health Organization defines it as “the delivery of health care services, where distance is a critical factor, by all health care professionals using information and communication technologies for the exchange of valid information for diagnosis, treatment and prevention of disease and injuries, research and evaluation, and for the continuing education of healthcare providers, all in the interests of advancing the health of individuals and their communities.”[12] This can range from the use of phones for calls and text messages to apps and other technologies to improve welfare. Other terminologies related to the concept are E-health, telehealth, telecare etc. Although there are minute differences between these terms, they all fall within the same ambit.

THE CURRENT STATE AND WHAT IT MEANS FOR NIGERIA

The relevance of telemedicine in the Nigerian Health sector cannot be overemphasized as it allows for improved access to healthcare, convenience, improved collaboration and consultation, allowing for continuity of care and can cater for people across different settings.[13] This is not to imply that telemedicine is without its challenges, although some challenges are peculiar to the state of the society. This invariably means that the challenges of e-health in a developed economy can be different from that which it will face in a developing society like Nigeria.[14] Some of the challenges of telemedicine in Nigeria, thus, include; slow growth or usage of telemedicine, lack of connectivity to rural communities, lack of adequate knowledge of technological devices, the cost implications of the use of telemedicine, cultural factors, data security issues, ethical considerations, and the big elephant in the room which is regulatory uncertainty[15].

As earlier stated, there is currently no law in Nigeria that directly deals with telemedicine, rather what we have are laws that already exist that deal with various other matters that may relate to or arise in the course of telemedicine, they only address aspects of telemedicine practice and not the whole. Some of these laws and regulations include;

• Code of Medical Ethics
• The Medical and Dental Practitioners Act Cap M8 LFN 2004
• Nigeria Data Protection Act 2023
• The National Information Technology Development Agency (NITDA) Act 2007
• Evidence Act 2011
• Nigerian Telecommunications Act 2003 etc.

These laws as their names imply only cater for different areas of human relations and if in the course of telemedicine, such situations arise, then the laws would extend to such scenarios. This is not enough, as telemedicine can stretch beyond the confines of these laws and matters that do not fall within the sphere of these laws would not be adequately catered for and may infringe the right of persons and where there is no law, there is no crime[16]. An appropriate example would be in the case of AI and who would be held responsible when there is a breach, would it be the software developer or the organisation that uses that model[17]? Also, when does a medical practitioner become liable or negligent for an action that was carried out over the phone or in the course of the use of an app or device for healthcare?[18] When is consent established over a digital platform, especially when a contract is absent?[19] We can see that even though there are laws that cater for these aspects in the traditional healthcare setting, it cannot stretch enough to cover telemedicine as that is beyond its scope and limit. Another major setback will be that there are no decided cases in Nigeria that cater for telemedical issues directly. The absence of specific laws that deal with telemedicine can lead to issues such as licensing and registration challenges, data protection complexity, jurisprudential deficit on issues of cross-border footprint, insurance and reimbursement coverage, medical liability and malpractice, and a host of other issues. Simply put, the lacunas in the already existent laws include but are not limited to[20];

• Failure to address acceptable modes of payment by patients to physicians.
• Absence of provisions that prohibit ‘tele-fraud’ and unnecessary billing.
• No clarity on the procedure where a minor is the patient of telemedicine.
• There are no legislations that cater for applicable laws where the patient and physician are from different jurisdictions with different legal systems.
• There is no standard definition of telemedicine and clearly spelt-out services it may be used to render.
• There is no provision for ‘tele-consent’.
• There is no regulation on how a patient’s data may be accessed and secured for cross-boundary telemedicine services.
• There is no regulatory body that oversees the implementation and enforcement.

In Esso West Africa Inc v. T. Oyebola,[21] the apex court emphatically stated that ‘the law cannot be and is not ignorant of the modern business method and must not shut its eyes to the mysteries of the computer.’ Thus, one may be forced to assume that the failure of the law to cater for e-health may be due to ignorance or a sheer underestimation of the technological risks that come with the advancements of telemedicine. The law is not static but dynamic, able to acclimatise itself with the changing scape of the society. It should be proactive when dealing with societal factors and this is only when it can be a change agent.[22] The absence of legislations, policies and regulatory bodies that cater for a unified telemedicine system is a central defect in the society that can further lead to a fundamental crisis in the healthcare system and other areas.

RESOLVING THE PARADOX

One may then conclude, ‘If the problem is the absence of laws, then just enact them’. Although this statement has an element of truth, it is not all that is needed to make telemedicine a workable phenomenon that can thrive in a developing country like Nigeria. There is a need for stakeholders’ synergy to understand the dynamics of telemedical approaches in the Nigerian economy, laws that firmly fit into the position of e-health in the society while using language that is relatable and compatible with the society, enacted and ensure that the law is comprehensive and reflects the interests and cultures of the society.

The law will give life to telemedicine by defining it and other related key concepts and to do this, it must avoid a vitiated and incoherent vocabulary of terms. Indeed, sloppy language makes sloppy law[23], but a water-tight set of definitions would be an elaborate affair or prove counter-productive. Thus, descriptive but clear terms can be opted for as nothing will be gained by a strict adherence to an incomprehensive and illogical scheme of terms.[24]

Another fundamental arm to ensuring that e-health prospers in the country will be the establishment of regulatory bodies and agencies that will ensure that the laws are not toothless bulldogs.[25] The government and other stakeholders will have to ensure that the laws are implemented rigorously and the citizens are educated on the importance and benefits of the law to them.

Basically, the absence of a specified law for an important aspect like telemedicine is not appropriate as healthcare is the base of a society. Thus, various steps must be taken to avoid assumptions, porosity and crumbling of the healthcare system of the country.

CONCLUSION

With the continual brain drain being experienced in the Nigerian medical profession, there is a need for urgent measures to be taken to curtail the spiraling decline in the quality of healthcare accessible to the masses. Telemedicine offers limitless opportunities but a robust regulatory framework is needed to provide a structure for its adoption.

SNIPPET

There is currently no law in Nigeria that directly deals with telemedicine; rather, what we have are laws that already exist that deal with various other matters that may relate to or arise in the course of telemedicine; they only address aspects of telemedicine practice and not the whole.

KEYWORDS

Telemedicine, e-health, telemedicine in Nigeria, Nigerian healthcare system

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN, is the managing partner of O. M. Atoyebi, S.A.N. & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Medical Law and its Legal Practice, and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng  

CONTRIBUTOR: Betseabasi Asuquo

Betseabasi is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Medical Law and its Legal Practice.

He can be reached at betseabasi.eyo@omaplex.com.ng

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[1] UNIDO, ‘Pharmaceutical Sector Profile: Nigeria’ (2011). https://www.unido.org/sites/default/files/2011-04/Nigeria_Pharma%20Sector%20Profile_032011_Ebook_0.pdf (accessed March 18, 2024)

[2] https://guardian.ng/news/nigeria-improves-on-who-health-system-ranking-says-acpn/ (accessed March 18, 2024)

[3] Abubakar A. Maishanu, ‘Only 1,300 Doctors Attending to Kano’s 15 Million Residents-NMA’ (PREMIUM TIMES, 2023) available at https://www.premiumtimesng.com/regional/nwest/636354-only-1300-doctors-attending-to-kanos-15-million-residents-nma.html (accessed March 18, 2024)

[4] KC Ukaoha and FA Egbokhare, ‘Prospects and challenges of telemedicine in Nigeria’ (2012), 3(1), Journal of Medicine and Biomedical Sciences, 65–70. Available at https://www.researchgate.net/publication/272877000_Prospects_and_challenges_of_telemedicine_in_Nigeria accessed on the 18th of March, 2024.

[5] JE Dodoo et al., ‘The Development of Telemedicine Programs in Sub-Saharan Africa: Progress and Associated Challenges’ (2022) 12(1) Health and Technology 33-46.

[6] KC Ukaoha and FA Egbokhare, op cit. fn. 4

[7] VE Efebeh, ‘Democracy and the Rule of Law in Nigeria: 1999–2015’ (2015), 5(20), Research Journal of Humanities and Social Sciences.

[8] JE Dodoo et al op cit. fn. 7

[9] AN Ikwu and others, ‘Advancement of telemedicine in Africa and the current laws: A case study of Nigeria’ (2021), 89(4), Medico-Legal Journal, 270–275.

[10] N Eriotis and others, ‘The Development of Telemedicine Projects by Private Health Institutions in Greece; Shareholder’s Reaction and Best Financing Methods’ [2008] (11) European Journal of Economics, Finance and Administrative Sciences 143-152

[11] GG Sagaro, F Amenta, ‘Past, present, and future perspectives of telemedical assistance at sea: a systematic review’ (2020) 71(2) International Maritime Health 97-104.

[12] World Health Organization. Telemedicine: opportunities and developments in Member States: report on the second global survey on eHealth. Global Observatory for eHealth Series, 2, World Health Organization. 2009.

[13] ibid

[14] C. Combi and others, ‘Telemedicine for developing countries’ (2016), 7(4) Applied Clinical Informatics, 1025–1050.

[15] BN Okpalaobi, NE Emeka, ‘An Appraisal of the Legal Framework for Telemedicine in Nigeria’ (2023) 5(39) IRLJ

[16] This statement reflects the legal principle “nullum crimen, nulla poena sine lege” which translates to ‘no crime, no punishment without law.’ It purports that for an act to be deemed a crime, there must be a law that prohibits it.

[17] Will the celebrated principle in Donoghue v Stevenson [1932] AC 562, 578-599, and entrenched in the Nigerian courts of a manufacturer being liable for the defects in his product apply or the will a new legal position be adopted that the Doctor be held liable for failure to envisage the defect in the course of healthcare.

 Will the celebrated principle in Donoghue v Stevenson [1932] AC 562, 578-599, and entrenched in the Nigerian courts of a manufacturer being liable for the defects in his product apply or the will a new legal position be adopted that the Doctor be held liable for failure to envisage the defect in the course of healthcare.

surgeon responsible for his own acts of personal negligence, while the resident was not found guilty of malpractice in another case. Other questions like who would be held responsible for a misdiagnosis that was due to a poor image quality?

[19] A similar question was laid before the court for just determination in the case of Teladoc, Inc. V Texas Medical Board 12 F. Supp. 3d 529 (W.D. Tex. 2015). In this case, the court was to decide on whether a defined physician-patient relationship is to exist before a physician may prescribe dangerous or addictive medications. The necessary relationship is defined as established through either an in-person examination or an examination by electronic means with a health care professional present with the patient. A similar position was adopted in Greenberg v. Perkins 845 P.2d 530 (Colo. 1993)

[20] OE Labisi, ‘The Legal Framework of Telemedicine in Nigeria’ An Undergraduate Thesis submitted to Babcock University in Partial fulfilment of the award of Bachelor of Laws (LL.B) (2021) is available at https://www.researchgate.net/publication/353664869_THE_LEGAL_FRAMEWORK_OF_TELEMEDICINE_IN_NIGERIA, accessed on March 18, 2024.

[21] (1969) NWLR 194 at 216-217 SC

[22] D Foote, Chapter Ten: Law as an Agent of Change? Governmental Efforts to Reduce Working Hours in Japan (1997), Baum H. (ed. ), Japan: Economic Success and Legal System. Berlin, Boston: De Gruyter, 251-302. https://doi.org/10.1515/9783110908886.251

[23] This is a deduction from the quote by Gordon B. Hinckley in his book ‘Stand a Little Taller: Counsel and Inspiration for Each Day of the Year’, “Sloppy language and sloppy ways go together….”

[24]UO Onyinye, A Nwadukwe, Effective Legal Communication: Writing with Clarity to Aid Understanding (2021) 3(1) Idemili Bar Journal.

[25] AA Asekhauno, GV Timinimi, ‘Information, the law and corruption in Nigeria 1: the incapacity of the anti-graft agencies’ (2017), 26(2), Journal of Information Ethics, 84–100.