Comparative Health Law and Policy

Critical Perspectives on Nigerian and Global Health Law

Irehobhude O. Iyioha, Remigius N. Nwabueze

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317163084
• Edition: 1
• Topic: Law
• Subtopic: Medical Law
• Index: Law

Health law and policy in Nigeria is an evolving and complex field of law, spanning a broad legal landscape and drawn from various sources. In addressing and interacting with these sources the volume advances research on health care law and policy in Nigeria and spells the beginning of what may now be formally termed the 'Nigerian health law and policy' legal field. The collection provides a comparative analysis of relevant health policies and laws, such as reproductive and sexual health policy, organ donation and transplantation, abortion and assisted conception, with those in the United Kingdom, United States, Canada and South Africa. It critically examines the duties and rights of physicians, patients, health institutions and organizations, and government parastatals against the backdrop of increased awareness of rights among patient populations. The subjects, which are discussed from a legal, ethical and policy-reform perspective, critique current legislation and policies and make suggestions for reform. The volume presents a cohesive, comparative, and comprehensive analysis of the state of health law and policy in Nigeria with those in the US, Canada, South Africa, and the UK. As such, it provides a valuable comparison between Western and Non-Western countries.

Chapter 1 Pathologies, Transplants and Indigenous Norms: An Introduction to Nigerian Health Law and Policy

Irehobhude O. Iyioha

DOI: 10.4324/9781315573083-1

Introduction

Health law and policy in Nigeria is a novel field. ‘Novel’ in this context implies evolving and uncharted. And, to some degree, innovatory – at least to the extent of the medley of norms (legal, ethical, socio-cultural, and ontological) that combine to define its content. Although the subject is not traditionally taught in Nigerian law faculties,¹ the field is incrementally developed by Nigerian scholars located around the globe, many of whom acquire interest in health law and policy at the graduate level. It is not surprising, therefore, that health law and policy in Nigeria is neither uncomplicated nor coherent. Indeed, this is an observation that may be, and has been, made of health law and policy in North America where the field has been described as atheoretical and lacking systemic analysis. Part of the reason for this characterization is the several legal and non-legal fields with which health law and policy interacts.

1 A few law faculties in Nigeria have now introduced ‘Medical Law’ as an elective course.

Health law and policy in Nigeria is no different. The field spans the broad landscapes of torts, contract law, criminal law, constitutional law, medical ethics, insurance law, intellectual property law, property law, and international law, and includes relevant health and health-related legislation. By implication, health governance in the country draws significantly on common law rules (such as the law of negligence) and statutory law, including though not limited to the principles contained in the Nigerian National Health Act finally passed in February 2014;² the National Health Insurance Scheme Act;³ the Medical and Dental Practitioners Act;⁴ the Code of Medical Ethics of the Nigerian Medical and Dental Council;⁵ criminal law principles as largely contained in the Criminal Code ⁶ – which operates in the 17 predominantly Christian states of the southern part of the country – and the Penal Code ⁷ – operating in the 19 mostly Muslim states of northern Nigeria and Abuja, the Federal Capital Territory – the two codes constituting Nigeria’s dualist criminal code system; the Constitution of the Federal Republic of Nigeria;⁸ as well as relevant international conventions, such as the African Charter of Human and Peoples Rights and the United Nations Universal Declaration of Human Rights.⁹ Other relevant laws or principles are drawn from legislation on property, intellectual property, and health products regulations, amongst others.

2 National Health Act, 2014, currently Senate Bill (SB) 215, ‘A Bill for an Act to provide a Framework for the Regulation, Development and Management of a National Health System and set Standards for Rendering Health Services in the Federation, and Other Matters Connected Therewith, 2014’ [National Health Act]. The bill was first passed in May 2011 by the 6th National Assembly. Following President Goodluck Jonathan’s refusal to sign the bill into law due to certain controversial clauses, the bill was returned to the National Assembly and was again passed by the Senate in February 2014. At the time this book went to press, it was awaiting the president’s signature: See Lagun Akinloye, ‘Nigeria’s National Health Bill: Delayed, Disputed and Desperately Needed’, ThinkAfricaPress (3 April 2013), online: http://thinkafricapress.com/nigeria/nigerias-national-health-bill-brave-new-world (accessed August 2014); see also Jonathan Nda-Isaiah, ‘Senate and the National Health Bill’, Leadership Newspaper (24 February 2014), online: http://leadership.ng/news/348438/senate-national-health-bill (accessed August 2014). Note that relevant chapters of this volume cite the bill as having been passed in 2008, 2011, or 2014, each of these dates respectively indicating the dates on which the bill was putatively passed by the National Assembly. 3 No 35 Laws of the Federation of Nigeria (LFN) 1999. 4 Cap M 8, LFN 2004. 5 Medical and Dental Council of Nigeria, The Code of Medical Ethics in Nigeria, 2004. 6 Criminal Code Act, Cap C 38, LFN 2004. 7 Penal Code (Northern States) Federation Provisions Act, Cap P 3, LFN 2004. 8 Decree No 24, LFN 1999. 9 African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986; Universal Declaration of Human Rights, adopted by the United Nations General Assembly in Paris on 10 December 1948, General Assembly Resolution 217 A (III). See also I Iyioha, ‘Medical Negligence and the Nigerian National Health Insurance Scheme: Civil Liability, No-Fault or a Hybrid Model?’ (2010) 18:1 African Journal of International and Comparative Law 46.

Some of the issues within these fields of discourse comprising the extensive field of health law and policy have been illuminated and cast into public discourse by recent events in Nigeria. For example, health related litigations and debates intensified after the deaths of 11 children and disabling injuries to several others following their participation in a drug test (Trovan drug for meningitis) conducted by Pfizer and involving a breach of ethical guidelines for pharmaceutical research.¹⁰ A United States Second Circuit Court ruling in this case affirmed a norm of customary international law that interdicts medical research on human subjects who have not consented to the experimentation.¹¹ Other evolving developments in Nigeria that are coming into the spotlight are the growing interest in assisted reproductive technologies and organ donation. Although organ donation seems to be in low demand in Nigeria at this time, Nigeria’s National Health Act contains pre-emptive provisions on the subject. These developments test the indeterminate borders of health law and policy in Nigeria and, as demonstrated in this book, scholars addressing these issues often refer to foreign legal norms.

10 The victims and their guardians sought legal relief in the US: see Pfizer v Abdullahi, 130 S Ct 534 (2009). 11 ‘Breaking News: Settlement in Abdullahi v. Pfizer’, Harvard International Human Rights Clinic (IHRC), online: http://harvardhumanrights.wordpress.com/2011/02/23/breaking-news-settlement-in-abdullahi-v-pfizer/ (accessed October 2012).

The application of extraterritorial legal traditions to legal research and analysis in Nigeria is customary. As discussed in the following section, health law and policy in Nigeria is inherently comparative as a number of its principles can be traced back to the country’s colonial rulers, the United Kingdom. This book draws on the normative products of this historical relationship as well as on similarities and divergences between principles of Nigerian law and principles of healthcare law in Canada, the United States, and South Africa to delineate the boundaries of what may now be described in formal terms as ‘Nigerian Health Law and Policy’.

Systemic Pathologies, Legal Transplants and Local Norms

The health law and policy field in Nigeria carries with it a colonial history amply exemplified by the transplanted legal norms that generally govern several other fields of law in the country.¹² As part of the received English common law, tort law is one of Nigeria’s inherited legal traditions. A former British colony, Nigeria received English common law, doctrines of equity, and statutes of general application that were in force in England on 1 January 1900. Specific English statutes received into Nigerian law through local enactments also form part of Nigeria’s inherited legal norms. While there have been academic debates about the precedential status of English decisions after 1 January 1900, one persuasive argument is that decisions after this date constitute precedents which are upheld except when there is a valid reason against the application of an English precedent, such as where a Nigerian statute or judicial decision modifies an English principle.¹³ It is, however, noteworthy that an indigenous Nigerian statute may largely replicate either a previously transplanted law or a new or post-1900 law in the foreign country. Nigeria also inherited the general framework of medical professional regulation as exemplified in the Medical and Dental Practitioners Act, as well as some legal norms that are now antiquated in their home jurisdiction, such as abortion law.

12 UK precedents on contracts, insurance law, criminal law, commercial law and even property law are often applied in Nigeria. However, different rules may apply in matters of land tenure, succession and inheritance, marriage and family, and chieftaincy cases on which Nigerian customary law shares some jurisdiction with British law. Nevertheless, relevant Nigerian local laws or customs to be applicable in Nigerian courts must not be ‘repugnant to natural justice, equity and good conscience, nor incompatible either directly or by implication with any law for the time being in force’: TO Elias, Nigeria: The Development of Its Laws and Constitutions (London: Stevens and Sons, 1967) at 310. Interestingly, the rules of natural justice, equity and good conscience are generally construed according to principles established under, and acceptable to, the British legal system. See A Seidman & RB Seidman, State and Law in the Development Process: Problem-Solving and Institutional Change in the Third World (New York: St. Martin’s Press, 1994) for a detailed discussion of how and why this situation is accountable for underdevelopment in Africa. 13 J Cottrell, ‘The Tort of Negligence in Nigeria’ (1973) 17:1 Journal of African Law 30.

As the second chapter of this book reveals, Nigeria has had a long history experimenting with different healthcare initiatives, policies, and development plans. Framed around early colonial plans, the array of policies, initiatives, and plans, including the more recent National Health Insurance Scheme, have done little to address the myriad problems that confront the health system today. Systemic challenges such as a shrinking health budget, rising healthcare costs, and out-of-pocket healthcare expenditure continue to plague health services delivery. According to a World Bank Report published in 2012, total healthcare spending as a percentage of Nigeria’s GDP fell from 7.55 per cent in January 2003 to 5.7 per cent in January 2010, while total out-of-pocket expenditure on health services in Nigeria is at 95 per cent.¹⁴ Although the human resources availability in Nigeria is among the best in the African region, the nation, as well as most countries in Africa, faces a human resources shortage crisis.¹⁵ The crisis is said to have wiped away the ‘survival gains achieved after a century of the most spectacular health advances in human history’.¹⁶ The 2012 World Bank data reports a 0.4 per 1,000 physician-patient ratio for January 2010; that is, 4 doctors for every 10,000 patients.¹⁷ The same report indicates 1.6 per 1,000 nurses/midwives-patient ratio and 0.1 community health workers per 1,000 patients. Major health problems including HIV/AIDS and malaria remain dominant health challenges in the country.

14 World Bank Indicators – Nigeria – Health Services, World Bank Data, online: http://www.tradingeconomics.com/nigeria/health-expenditure-total-percent-of-gdp-wb-data.html (accessed October 2012) [‘World Bank Indicators – Nigeria – Health Services, World Bank Data’]. 15 Crisis in Human Resources for Health in the African Region (2007) 7:1 African Health Monitor 1–49 (A WHO Regional Publication) [Crisis in Human Resources for Health in the African Region]. See also LG Sambo, ‘The Human Resources for Health Crisis in Africa’ in Crisis in Human Resources for Health in the African Region, supra, at 4 [Sambo, ‘The Human Resources for Health Crisis’] (the author also observes that another factor responsible for the lack of health workers is the HIV/AIDS epidemic, which has increased the number of people who need care, treatment and support). 16 See Crisis in Human Resources for Health in the African Region, supra note 15. 17 World Bank Indicators – Nigeria – Health Services, World Bank Data, supra note 14.

It has been argued that many of these problems are debatably the extended corollaries of the 1960 political transition to independence when foreign medical professionals returned to the UK leaving only relics of medical infrastructure and personnel in the local health system; also arguably accountable for the perennial problems is a post-independence system that ties itself to transplanted norms that are the outcomes of different ideals, cultures, and visions.¹⁸ The institutional and operational framework as well as the development of the Nigerian health system is shaped by the traditional influence of economic and political dynamics, as well as by social, cultural and religious factors. A country like Nigeria with approximately 177 million people, well over 250 ethnicities and languages, and with sharp divisions between its ‘Christian’ and ‘Muslim’ and in some cases ‘Traditional Religion’ groups has different priorities, interests, and needs from those of any Western nation, including Britain. These needs and priorities are amplified by the economic and political factors prevalent in the country, as well as by Nigeria’s social and cultural values.

18 See generally IO Iyioha, Health Governance, Medical Pluralism, and the Politics of Integration: A Legal Theory for Increasing Access to Healthcare (Vancouver: University of British Columbia Doctoral Dissertations, 2010) [Iyioha, Health Governance] for a discussion of academic arguments on this point and for a fuller analysis of the issue.

Take, for instance, the country’s heavy dependence on alternative health resources. Not only is this dependence economically motivated to supplement the shortcomings of the biomedical system, the practice is also deeply cultural and religious in parts. Thus, the Nigerian policymaker who intends to apply to the regulation of alternative healthcare delivery in Nigeria rules that are effective for the regulation of the UK or Canada’s complementary and alternative health systems would need to ensure that the transplantation of rules from either of those systems to the receiving state recognizes the unique needs and differences in purpose and vision of the people to whom the law is to be applied. The policymaker or lawmaker would also need to recognize that the healthcare choices Nigerians are faced with are ‘not between a private healthcare system that charges for a broad menu of high-quality services and a public system that offers essential services’ at little or no cost.¹⁹ Rather, all patients, consumers, and users, including the wealthy and the indigent, ‘are confronted with a bewildering array of sources for healthcare, from medicine peddlers to traditional healers to highly trained specialist physicians to civil servants setting up private practices of wildly uneven quality’.²⁰

19 LP Freedman et al, Who’s Got the Power? Transforming Health Systems for Women and Children (London: UN Millennium Project 2005, Task Force on Child Health and Maternal Health, 2005) at 39 [Who’s Got the Power?], citing G Bloom & H Standing, Pluralism and Marketization in the Health Sector: Meeting Health Needs in the Contexts of Social Change in Low- and Middle-Income Countries, IDS Working Paper, 136 (Brighton: Institute for Development Studies, University of Sussex, 2001). Also, see generally I Iyioha, ‘In Search of Law’s Residence: Towards the Creation of a Mosaic Healthcare State’ (2009) 24:2 Canadian Journal of Law and Society 251. 20 Freedman et al, Who’s Got the Power?, supra note 19, at 40.

Nigeria’s informed consent law provides another example of the dichotomy between the country’s needs and the mandates of some transplanted legal norms. Nigerian informed consent law is virtually a facsimile of the UK’s informed consent law which gives medical professionals extensive decision-making powers over t...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Acknowledgements
• 1 Pathologies, Transplants and Indigenous Norms: An Introduction to Nigerian Health Law and Policy
• 2 Healthcare Organization and Financing
• 3 Regulation of Healthcare Practice
• 4 Medical Negligence
• 5 Informed Consent
• 6 Physicians’ Handling of Patients’ Health Information: Ethics and Law of Confidentiality
• 7 Children and Adolescents’ Access to Reproductive and Sexual Healthcare
• 8 Euthanasia, Assisted Suicide and Decision-making at the End of Life
• 9 Abortion and the Law
• 10 Organ Donation and Transplantation
• 11 Assisted Reproductive Technology
• 12 Medical Integration: Law and Policy on Alternative and Integrated Medical Practice
• 13 Governance of Research Involving Human Subjects
• Index