Role of Regulatory Bodies in Prohibiting Ethico-Legal Breaches in the Healthcare

CONTRIBUTED By ANTHONY AKEJELU

INTRODUCTION

Medicine and the law are intertwined, each influencing and supporting the other.^[1] The deep connection that exists between both concepts suggests that they are not separate entities but rather intricately linked aspects of human society, and their synergy is strengthened by enduring factors like culture, tradition, religion and so on.^[2] The link between the two concepts can be manifested through regulatory bodies and legal frameworks that govern the practice. These regulatory bodies often established by law play a pivotal role in ensuring that medical professionals adhere to the specified standards of practice, ethics and safety, thereby implementing the laws and ethics for the profession.^[3]

Implementation of the law is one of the key aspects in giving life to the law and making it significant in the society and relevant to real-world scenarios.^[4] Hence, proper implementation of laws allows the laws to be operational, and enforceable, it also allows the law to fulfil its intended purpose within the society.^[5] For proper implementation of laws, there is a need for agencies, bodies and organisations to be set up to regulate adherence to these laws and punish offenders. This body is what is referred to as Regulatory Body. These organisations are responsible for setting standards, qualifications, methods of practice and regulating the affairs of a particular field or profession.^[6]

In recent healthcare systems, regulatory bodies have multifaceted responsibilities such as, overseeing healthcare practices, setting standards, enforcing regulations to prevent ethico-legal breaches, safeguarding patient rights, ensuring quality care, and upholding ethical principles etc all to the end that the well-being and safety of patients are upheld, professional integrity is maintained, and to foster public trust.^[7] Maintaining ethical standards and legal compliance is paramount in healthcare as the absence of this would lead to dysfunctionality in the system.^[8]

REGULATORY BODIES IN HEALTHCARE

There are different regulatory bodies in healthcare and they are responsible for overseeing different aspects of the system. These organisations are vested with the power to ensure that ethics are maintained and laws are adhered to. This is to ensure that there is uniform practice, patients’ rights and safety are ensured and that the highest standard is kept in the profession.^[9] Some of the ethics and laws in the healthcare system that are to be upheld are, the code of medical ethics, the Hippocratic oath now modernised as The Declaration of Geneva, the Florence Nightingale oath, the National Health Act and so on. Medical ethics is the branch of applied ethics relating to moral behaviour and judgments in medical practice and clinical research.^[10] Although ethics are generally only morally binding and ordinarily do not carry punishment, In the medical profession, the line between ethics and laws is blurred as both play overlapping functions and all practitioners are bound to uphold both and deterrence of any or both will attract sanction.^[11]

Beyond ensuring that laws are upheld and offenders are punished, regulatory bodies have various responsibilities. These include setting the regulatory framework, enforcing it, licensing and accrediting practitioners along with oversight functions, education and training of professionals and upholding public health, safety, and welfare. These responsibilities are multifaceted and the body must be able to adapt to technological changes, cultural diversity, societal factors and other systemic challenges that may arise. Some key professional regulatory bodies in healthcare include;

• Medical and Dental Council of Nigeria
• Pharmacy Council of Nigeria
• Nursing and Midwifery Council of Nigeria
• Medical Laboratory Science Council of Nigeria
• Radiographers Registration Board of Nigeria (RRBN)
• Federal Ministry of Health and so on

These are only but few of the agencies that are tasked with the responsibility of regulating different aspects of the medical profession and the next phase of this article will discuss the extent to which the bodies have kept their responsibility and the role of the judiciary system in aiding or discouraging their efforts.

The Medical and Dental Practitioners Act LFN 2004, provides for the establishment of the Medical and Dental Practitioners Disciplinary Tribunal^[12] (hereinafter referred to as MDPDT) and the establishment of an Investigation Panel called “The Panel,”^[13] The panel investigates and reports cases of professional misconduct all in a bid to ensure ethical compliance or sanctions as the case may be. Breaches of codes of practice/conduct or professional malfeasances can be in the form of negligence, breach of duty of care, failure to adhere to the standard of practice or falling below and a host of others.

The apex court in Medical & Dental Practitioners Disciplinary Tribunal (MDPDT) V Okonkwo^[14] held: “there are no closed categories of ethical breaches, infamous conduct or unprofessional conduct”. One cannot solely determine what constitutes infamous conduct without due recourse being made to the law on what it permits, either of the patient or of the practitioner.^[15]

Over the years, the various regulatory agencies have attempted to address various forms of breaches to the laws of the profession and in upholding the ethics of the profession. Some of these attempts have been successful while others have been met by stifling demands of the judicial system while some other bodies have not attempted at all. The MDPDT has been at the helm of affairs in ensuring that offenders of the profession are tried but some of the positions have met setbacks at the regular court level.^[16] One such example is in the case of Okonkwo v MDPDT^[17] where the court set aside the decision of the tribunal on the ground that any negligence that amounted to a crime had to first be tried in a court before being brought before the tribunal^[18].

Another reason why the court would fail to uphold the decision of a quasi-judicial body such as these regulatory agencies would be a failure to observe the rules of natural justice and fair hearing. For instance, in Olaye v Chairman MDPDT^[19]and Denloye v MDPDT^[20] the court refused the decisions of the tribunal on grounds of no adherence to the rules of natural justice. Generally, with regards to quasi-judicial bodies like tribunals set up by medical regulatory bodies, the rule is that the tribunal is subject to;^[21]

• The general law of the land,
• The Statutes, or instrument guiding its jurisdiction or terms of reference; and
• The rules of natural justice and fair hearing.

Hence, decisions of the MDPDT are bound to be upturned if they do not adhere to these. Furthermore, the courts have stated that breaches that amount to criminal offences must first be tried in a court of competent jurisdiction before the tribunal can take action.^[22]

Another fundamental regulatory body is the Nurses and Midwifery Council of Nigeria which has a tribunal known as the Nurses and Midwives Tribunal. Allegations of professional misconduct against nurses and midwives are addressed by this tribunal and procedures on how complaints can be lodged are spelt out.^[23] One of the issues with this tribunal is that the public space contains a dearth of data on how effective this tribunal has been and information suggests that not many are aware of its existence.^[24] Also, there is a contradiction between the status of the MDPDT and this disciplinary tribunal.^[25] The MDPDT is given the status of a High Court and appeals from the tribunal go straight to the Court of Appeal while appeals from this disciplinary committee go to the High Court^[26] and the reason for this remains unknown as only speculations can be made.

The Pharmacy Council of Nigeria also has a tribunal constituted to cater to deterrents that may be obtainable in the profession. This tribunal just like the aforementioned has not been very active but has in recent times attempted to leave strides in healthcare delivery. One can safely assume that the attempts have been successful as there has been no case of a judicial upturn thus far. The tribunal has on two occasions sanctioned erring members of the profession with punishments of striking out their names or suspension.^[27] Away from these two instances, the tribunal has over time been silent and almost inexistent in terms of punishing offenders but maintains well other administrative matters.

Other tribunals not treated here function in their own sphere and scope to ensure that the healthcare system runs smoothly and carefully. The reason for their omission is mainly due to a scarcity of literature on it, a low level of awareness and an absence of sufficient cases shedding light on the responsibilities of the tribunals.^[28]

CONCLUSION

The power of self-regulation which is endowed upon professionals, guarantees that specific professions can discipline dissenting members within the confines of the law.^[29] When exercised properly and effectively, promotes sustained trust in the profession. The bodies are to adhere strictly to and be bound by the provisions of the law, subjecting themselves to any measures spelt out. While the courts should not be in a hurry to stifle life out of the tribunals and upturn their decisions just based on minute technicalities.^[30] Regulatory bodies should be able to adapt to the changing needs of their profession with a full understanding of the responsibilities that have been vested in them by the law.^[31]

The essence of regulatory bodies in a profession cannot be overemphasized as they give meaning, direction and function to the practice.^[32] They build the public’s trust in that profession and set standards of practice to prevent haphazardness and violations of rights. If these bodies are not acquainted with the huge responsibilities before them, then the very foundation of that profession is not secure and, in a matter of time will be in shambolic.^[33]

YOU NEED TO HIGHLIGHT PARTICULAR ETHICO-LEGAL BREACHES IN NIGERIA AND BRING TO THE FORE THE NEED FOR REGULATION.

1. Majno G. The healing hand: man and wound in the ancient world (1975) Harvard University Press ↑
2. J.E. Cawte (1974) Medicine is the Law: Studies in Psychiatric Anthropology of Australian Tribal Societies.

   Honololu: University of Hawaii Press. Cited in http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812009000400006 (accessed on 21 March 2024) ↑

3. JH Kultgen Ethics and professionalism. University of Pennsylvania Press 1988. ↑
4. RB Van. ‘The people’s regulation: citizens and implementation of law in China’ (2012) 25 Colum. J. Asian L 116. ↑
5. ibid ↑
6. Duties and functions of regulatory bodies are stated in the laws establishing them. ↑
7. https://insights.omnia-health.com/hospital-management/driving-private-investment-healthcare-roles-and-responsibilities-regulatory (accessed on 22 March 2024) ↑
8. O’Sullivan S, and others ‘Legal, regulatory, and ethical frameworks for development of standards in artificial intelligence (AI) and autonomous robotic surgery’. (2019) 15(1) The international journal of medical robotics and computer assisted surgery. e1968. ↑
9. Z Nampewo, JH Mike, J Wolff. ‘Respecting, protecting and fulfilling the human right to health’ (2022) 21(1) International Journal for Equity in Health 36. ↑
10. medical ethics. Oxford Reference from https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100146816. Retrieved 21 Mar. 2024 ↑
11. https://www.sermo.com/resources/health-care-law-and-ethics-the-top-concerns-for-physicians/ (accessed 22 March 2024) ↑
12. Section 15 (1) of the Medical & Dental Practitioners Act Law of Federation of Nigeria 2004 ↑
13. Section 15(3) of the Medical & Dental Practitioners Act Law of Federation of Nigeria 2004 ↑
14. (2001) 7 NWLR (Pt. 711) 206 SC ↑
15. Allison v General Council of Medical Education and Registration (1894) 1 QB 750 CA ↑
16. Esq BA. ‘Legal Implications of Ethical Breaches in Medical Practice: Nigeria a Case Study’ (2013) 1(3) Asian Journal of Humanities and Social Sciences (AJHSS) ↑
17. (1999) 9 NWLR (Pt. 617) 9 CA ↑
18. MDPDT v Okonkwo (supra), Denloye v MDPDT (supra) ↑
19. (1997) 5 NWLR (Pt. 506) 550 CA ↑
20. (1968) 1 All NLR 306 SC ↑
21. HS Saxena ‘Tribunals And Natural Justice Principles’ (1996) 38(3) Journal of the Indian Law Institute 348–361. Available at http://www.jstor.org/stable/43952389 ↑
22. Ibid (n 18) ↑
23. https://www.nmcn.gov.ng/reporting.html (accessed 22 March 2024) ↑
24. Kourlis RL & Gagel PA, ‘Reinstalling the Courthouse Windows: Using Statistical Data to

    Promote Judicial Transparency and Accountability in Federal and State Courts’ (2008) 53(7) 951

    Available at: https://digitalcommons.law.villanova.edu/vlr/vol53/iss5/7 ↑

25. C Onyemelukwe ‘The Regulation of Nursing in Nigeria: A Critical Analysis’ (2016) 55 JL Pol’y & Globalization 139. ↑
26. Section 18 Nursing and Midwifery Council Act, Cap. N143, Laws of the Federation of Nigeria, 2004. ↑
27. https://www.premiumtimesng.com/business/business-news/490480-alleged-fraud-nigerias-pharmacist-council-begins-trial-of-three-members.html?tztc=1 and https://www.vanguardngr.com/2023/06/tribunal-suspends-4-pharmacists-from-practice-over-violation-of-ethical-standards/#google_vignette (accessed on 22 March 2024) ↑
28. CJ Mba and others, ‘Challenges Associated with Midwifery Practice and Education in Northern Nigeria: Way Forward’ (2021) 3(1) Bayero Journal of Nursing and Health Care 906-917 ↑
29. I Bartle, P Vass ‘Self‐regulation within the regulatory state: Towards a new regulatory paradigm?’ (2007) 85(4) Public Administration 885-905. ↑
30. O Aje-Famuyide ‘Administrative Law II’ NOUN courseware ↑
31. Overcoming challenges and resistance to change in regulatory transformation and IT modernization https://thentia.com/insight/resistance-to-regulatory-transformation/ (accessed on 22 March 2024) ↑
32. L Thomas What is the role of Regulatory bodies in healthcare https://www.news-medical.net/health/What-is-the-Role-of-Regulatory-Bodies-in-Healthcare.aspx (accessed 22 March 2024) ↑
33. ibid ↑