The National Health Act 2014 in

clinical practice: The Known, the

Unknown and the Cryptic

Adegboyega Ogunwale, MB, BS (IL), PGD

(Statistics), FWACP, LLM (Med. Law & Ethics)
 Introduction
• A landmark event occurred in Nigeria on Friday, 31st
October, 2014 when the much publicized National
Health Act received Presidential assent under the
hand of Dr. Goodluck Ebele Jonathan, GCFR
• Even Mr President (as he then was) and the Nigeria
that he superintended have always been a brilliant mix
of the known, the unknown and the cryptic indeed. To
say anything further will certainly be scandalous!
• Anyway, we got a good Act which can be better and
some day, could be best.
 The National Health Act
• Title: ‘An Act to Provide A Framework for the
Regulation, Development and Management of a
National Health System and Set Standards for
Rendering Services in the Federation, And Other
Matters Connected Therewith, 2014.
• History outline:
– First reading: Tuesday, 2nd October, 2012
– Second Reading: Wednesday, 12th December, 2012
– Third Reading & Passage: Wed., 19th Feb., 2014
– Presidential Assent: October 31, 2014

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 The National Health Act 2
• Arrangement:
– Part I: Responsibility for health and Eligibility for
health Services and establishment of National Health
System (Nigerian NHS!)
– Part II: Health Establishments and Technologies
– Part III: Rights and Obligations of Users and
Healthcare Personnel
– Part IV: National Health Research and Information
System
– Part V: Human Resources for Health
4
 The National Health Act 3
– Part VI: Control of Use of Blood, Blood products,
Tissue and Gametes in Humans
– Part VII: Regulations and Miscellaneous Provisions

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 Areas of focus in clinical practice
• Main sections of emphasis:
– Sections 20-30
• Other relevant sections:
– Section 38
– Section 40
– Section 43
– Section 45: Industrial dispute in the health sector
– Section 48
 Emergency treatment under the Act
• Covered in section 20
– “A health care provider, health worker or health
establishment shall not refuse a person emergency
medical treatment for any reason
whatsoever”(emphasis mine)
– Contravention: guilty of an offence; fine of N100,000
or six months’ imprisonment or both
• Cryptic OR unknown:
– s. 64 defines “reasonable cause” as any extenuating
circumstance which prevents the healthcare provider,
etc. from providing emergency medical treatment
• Does compliance with s. 20 differentiate
private from public health establishments? No.
So, who bears the cost of mandatory
treatment on emergency basis in private Hs?
• Note: s. 48(1)(b): consent may be waived for
medical investigations and treatment in
emergency cases although this relates directly
to removal of tissue, blood or blood products
from living persons – extent of application??
Rights of users and providers of healthcare

• Covered in section 21
• Human rights: apply to both users and
providers
• Ethical duty to protect the rights of patients
– Autonomy
– Beneficence
– Non-maleficence
– Justice: in the distributive sense
 Do patients have rights?
• Patients are primarily human beings before they become ill.
• This shared humanity makes it clear that they have rights.
• International declarations and conventions indicate this position:
– WHO Constitution
– WHO Declaration of Alma-Ata
– Universal Declaration of Human Rights (1948), African Charter, Nigerian
Constitution (1999 as amended)
– International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights (1966)
– UN Convention on the Rights of the Child (1989)
– UNESCO Universal Declaration on the Human Genome and Human
Rights (1997)
– UNESCO Universal Declaration on Bioethics and Human Rights

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 Do patients have rights? 2
• A summary of rights in healthcare (Mason & Laurie, 2013):
– Right to be respected and treated with dignity
– Right to the highest attainable standard of physical and mental
health and associated right to healthcare
– Right to consent and to refuse consent to medical intervention
– Right not to be subjected to medical or scientific experimentation
without consent
– Right to equality under the law
– Right to protection against arbitrary interference with privacy or
with the family
– Right to enjoy the benefits of scientific progress and its application
– The protection of the rights of vulnerable persons

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 Do patients have rights? 3
• The EU Charter of patients’ rights (2002) provides 14
key rights in the healthcare context:
1. Right to preventive measures
2. Right to Access
3. Right to information
4. Right to consent
5. Right to free choice
6. Right to Privacy and confidentiality
7. Right to respect of patient’s time
8. Right to observance of quality standards
9. Right to safety
10. Right to innovation
11. Right to avoid unnecessary suffering and pain
12. Right to personalized treatment
13. Right to complain
14. Right to compensation
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 Do healthcare providers have rights?
• Section 21:
– Right to protection from injury or damage to the person
and property of healthcare personnel
– Right to protection from disease transmission e.g. Ebola
and the need for PPE + other protective steps
– Right to refuse treatment of physically or verbally abusive
service user or user who sexually harasses provider; may
report such user to appropriate authorities
– Conscientious objection e.g. to assume care of JWs who
may not cooperate with treatments such as BT
PART A, Section 9, MDCN Code of Ethics
(2004)
 Indemnity of staff
• Section 22
• Applies only when staff is not found negligent
• Unknown: this law is silent as to what
happens if healthcare provider found
negligent while following institutional policy
• Cryptic: Raises the need for proper indemnity
insurance for key healthcare professionals
 Healthcare user’s consent
• Covered under section 23
• Emphasis appears to be on ‘full information’ or
disclosure to patient
• Voluntariness and capacity not adequately addressed
(Compare with instruments such as Nuremberg Code
(1949), Declaration of Helsinki (as amended, 2013),
the UK MCA (2005)
• Where does this law stand on the matter of
substituted judgment? Will it be proxy consent or best
interest?
 Incompetent adults
• s. 26(2)(b)(ii): consent for disclosure of confidential
material may be provided by ‘guardian’ or
‘representative’
• s. 64 (interpretations): for patients incapable of
taking decisions, “user” (i.e. proxy for the patient)
includes: SPOUSE or in the absence of the spouse,
PARENT, GRANDPARENT, ADULT CHILD (NOT LESS
THAN 18), BROTHER, SISTER OR ANOTHER PERSON
AUTHORISED BY LAW TO ACT ON BEHALF OF THE
PATIENT (no particular order defined).
 Consent and children
• s. 64: when user is ‘below the age of majority’,
consent may be provided by proxy who may
be patient’s parent or guardian or another
person authorised by law to act on behalf of
the child. What is this age: 16, or 18?
• Where does this law stand in the arena of
“Gillick competence”? Is there a direct
translocation of English Jurisprudence into
Nigeria in this matter? MDCN (2004) seems to
believe so (s. 39, pp. 49-50!)
 Informed consent: relevant case law
• Okonkwo v. MDPDT (Court of Appeal, Lagos;
June, 1999)
– Ob/Gyn charged with causing death (by
negligence) of a 29 year old female with Anaemia,
a member of the Jehovah’s Witnesses; she refused
blood and was referred to Okonkwo (also a JW). He
kept her in his clinic for 4 days (without blood
transfusion) and she died. He was ready to give
blood (pt refused); he gave other treatments
– MDPDT verdict – guilty and was suspended from
medical practice for 6 months
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• Allowing the appeal: The court held:-
– “If a patient refuses to give informed
consent, the law is that the medical
practitioner will not proceed to administer
the medical treatment. Otherwise, the
practitioner will be liable for assault or
other forms of trespass to the person and
for any other mental or physical injury or
damage which may occur”

20
• “Having regard to sections 35(1) (freedom of
thought, conscience, religion) and 36(1)
(freedom to hold opinions) of the Constitution
of the Federal Republic of Nigeria (1979) and
other personal rights of the individual, an adult
of sound mind has a right to choose what
medical treatment made available to him
subject to and when to refuse”
• “The courts should not allow medical opinion
of what is best for the patient to over-ride the
patient’s right to decide for himself…”
21
• Justice Benjamin Cardozo in Schloendorff v. Society
of New York Hospital, 211 N.Y. 125, 105 N.E. 92
(1914) held:
– “Every human being of adult years and sound mind has a
right to determine what shall be done with his own body;
and a surgeon who performs an operation without his
patient's consent commits an assault for which he is
liable in damages. This is true except in cases of
emergency where the patient is unconscious and where
it is necessary to operate before consent can be
obtained”.

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– Williamson v East London and City Health
Authority (1998) 41 BMLR 85: plaintiff consented
to removal and replacement of a leaking breast
implant. Doc found a more serious condition
during surgery and conducted mastectomy. Doc
found liable for causing injury; 20,000 pounds
awarded

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• Consent for minors:
– For those minors that lack mental capacity, consent should
be sought from parents (see Glass v United Kingdom
(2004) 39 EHRR 341)
– Minors that are ‘emancipated’ or mature, having mental
capacity can provide consent on their own (Gillick v West
Norfolk and Wisbech Area Health Authority and another
[1986] 1 AC 112)
• Consent for those with mental disorders rendering
them incompetent:
– Find out if they have executed powers of attorney; if so,
consult relevant attorney.
– If not, treatment should be carried out based on the ‘best
interests’ principle

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• When adults refuse consent to treatment:
– Wishes of patient to be respected even if it will lead
to death
• Re T (adult ) (refusal of medical treatment) [1992] 4 All ER
649: pregnant JW who refused blood transfusion. Decision
to transfuse was only justifiable because she was found to
lack mental capacity
• Re C (adult: refusal of medical treatment) [1994] 1 All ER
819: 68 yr old schizophrenic prisoner who refused
amputation despite life-threatening gangrene. Court found
him capable to refuse and amputation was not done.

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• Level of information to be disclosed for consent to be
‘informed’:
– This should follow a ‘prudent patient’ standard. What amount of
information would a reasonable person wish to have? Take into
account, the patient’s concerns (Reibl v Hughes (1980) 114 DLR
(3d) 1).
– The General Medical Council (UK) offers this guidance: “In deciding
how much information to share with your patients you should take
account of their wishes. The information you share should be in
proportion to the nature of their condition, the complexity of the
proposed investigation or treatment, and the seriousness of any
potential side effects, complications or other risks”

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 Health Records
• Section 24-25: creation of health records
• Records must be kept for ‘every user’
• This suggests that documentation of every
clinical transaction is key
• Avoid ‘corridor consulting’
 Confidentiality
• Section 26 covers this important medico-legal
issue
• Cryptic: What are the grounds for derogation
from this responsibility?
– Public health: What if the ‘public’ is not public in
the real sense but a single potential victim clearly
identified?
 Medical Confidentiality
• Legal and ethical duty
• Legal duty:
– Both under statute(s) and common law
• Common law: contract, equity and tort
• Current statute: NHA (2014)
• Ethical premise:
– Basic ethical principles
– Hippocratic oath
– Other declarations
– Code of medical ethics (MDCN, 2004; 2008)
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 Common law duty of Confidentiality

• Developed through cases in which patients

sued physicians for alleged disclosure of
confidential information without
justification (Mae, 2004)
1. Contract: implied contractual duty of
confidentiality in a consultation encourages
patients to disclose sensitive information; no
fear of disclosure without consent (see Parry
Jones v Law Society (1969) Ch 1 at 7

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 Common law duty of Confidentiality 2

2. Equity: patient relies in good faith on the

physician to keep “secret” secret.

3. Tort: there is a general duty on the physician

not to cause forseeable harm to another
through disclosure of confidential material
[Furniss v Fitchett (1958) NZLR 396]

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 Furniss v Fitchett (1958) NZLR 396]

• Mr. & Mrs. Furniss were both patients of Dr. Fitchett.

• Mrs. seemed to exhibit paranoia towards Mr. and
confided in Dr. Fitchett.
• The paranoid symptoms led to marital disharmony.
• Mr. contacted solicitor and asked dr. for a medical
report on his wife.
• Dr. issued medical report [without patient’s consent]
indicating that wife could be mentally ill; report came
up during separation proceedings in court.
• Mrs. Sued doctor and the doctor was liable for
breach of confidentiality and harm to patient.

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 Confidentiality and professional conduct
• Nature of the obligation of confidentiality: Court of
Appeal in A-G v Guardian Newspapers Ltd [1990] AC 109, it
was upheld that there was a public interest in a
legally enforceable protection of confidences
received under a notice of confidentiality. This is
applicable to all confidential material.
• Hunter v Mann ([1974) QB 767 at 772: “…the doctor is
under a duty not to [voluntarily] disclose, without
the consent of the patient, information which he, the
doctor, has gained in his professional capacity”

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 Confidentiality as per the Code of Medical
Ethics in Nigeria
• Features as rule 44 under Part D: Improper
relationship with colleagues or patients.
• Salient points:
– Information about the patient during the course of
patient-doctor relationship constitutes a secret
and such must in no way be divulged by him to a
third party (not very practical in a teaching
hospital!)

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– Medical records to be kept away from any person
who is not a member of the profession
[contentions: no reference to nurses, medical
records staff, social workers, occupational
therapists, etc. who may be clinical staff but not
members of the profession]
– The ethic covers criminal abortion, venereal
disease, attempted suicide, concealed birth, and
drug dependence.
– Reasons for disclosure of information (not
necessarily breach!): education, research
monitoring, public health surveillance, clinical
audit, administration and planning.

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 Steps to take before disclosure of
Confidential information
• Seek patient’s consent: whenever possible,
whether or not you judge that the patient can
be identified from the disclosure. “Volenti non
fit injuria”
• Maintain data anonymity: “cryptic utilization”
of clinical material for teaching or publication
in professional journals;
• Keep disclosures to the minimum necessary:
“need to know basis”
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 Limits to Confidentiality: the “proper”
breach
• Disease notification: no consent of patient
needed
• Clear advice to patients on the breach which
will attend medical exams for employment,
insurance, security or determination of legal
competence
• “discretionary” breach of confidentiality to
protect the patient or the community from
imminent danger

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 Limits to Confidentiality: the “proper”
breach 2
• Disclosure of information on legal “minor” to parents
or guardians: take note of “Gillick” competence
which is recognized by council in relation to consent
(MDCN, 2004; Gillick v West Norfolk and Wisbech Area Health
Authority and another [1986] 1 AC 112).
• Disclosure during court proceedings (strictly under
protest – “testimonial privilege): subpoena duces
tecum and subpoena ad testificandum
• When the patient sues/accuses the doctor in his
professional capacity

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 Practical Dilemmas w.r.t Confidentiality
• Consent to publish
• Patient’s best interests
• The doctor balancing “private interest” with “public
good”
• Confidentiality in HIV infection: stigma, sexual
connotation of the disease, association with drug
addiction; not yet a notifiable disease
• Confidentiality within the family
• Confidentiality and death – details on death
certificate?

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 Relevant Case 1
• W v Egdell [1990] 1 All ER 835:
– A patient in a secure hospital sought a review of
his case in order to obtain transfer to another a
regional hospital.
– His lawyers obtained a report from an
independent psychiatrist – report unfavourable
and was not tendered; application was aborted. Pt
however due for routine review of detention
order.

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 Relevant Case 1 cont’d
– Doctor sent separate report to the Medical
director of the hospital and the home office.
– Sued for breach of confidentiality
– Trial judge and Appeal court found for the
defendant: disclosure was in public interest –
patient had committed multiple homicides in the
past.

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 Relevant Case 2
• Case Note 210870 [2010] NZ Priv Cmr 24:
– A medical centre disclosed health information to a
patient’s former partner.
– Both partners (X & Y) were both patients of the facility
who were involved in court proceedings after the
breakdown of their relationship.
– X visited centre with her new partner and asked for the
family file. Centre mistakenly thought her new partner was
Y and disclosed sensitive information about Y’s anxiety
disorder.
– X used this information against him in the family court

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 Relevant Case 2 cont’d
– Medical centre was investigated by the Privacy
Commissioner and they were liable.
– Remedies: centre apologised, agreed to pay
compensation and to provide Y and his children
with free medical services for a set time.

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 Relevant Case 3
• Director of Human Rights Proceedings v
Henderson [2011] NZHRRT 1
– General practitioner disclosed information about a
patient who was on a methadone programme
(drug abuse treatment) to a senior nurse at
patient’s place of work.
– He believed pt had displayed drug-seeking
behaviour, had previous convictions for drug
offences and was mistrusted by police.

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 Relevant Case 3
– Tribunal found that with the information available
to the doctor at the material time, he did have
reasonable grounds to regard a threat that was
imminent and that disclosure to someone
responsible would respond to and mitigate the
threat.
– Tribunal found his disclosure justified and he was
not liable for breach of the Health Information
Privacy Code.

45
Tarasoff 1: A confidentiality dilemma
• Tarasoff v Regents of University of California,
551 P 2d 334 (Cal, 1976)
– Prosenjit Poddar, a student at University of
California was in psychotherapy and he told his
therapist that he intended to kill a young lady,
Tatiana Tarasoff who had rejected his advances.
– Therapist informed campus police but Poddar
denied the threat during interview. Nothing else
was done
– Poddar left therapy and two months later,
murdered Tatiana Tarasoff

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Tarasoff 1: A confidentiality dilemma 2
– Victim’s family sued the university which was
running the clinic
– The Californian Supreme Court ruled that the
therapist had a “duty to warn” the intended victim
and established a doctrine that justified breach of
confidentiality in exceptional circumstances
– A similar scenario involving HIV transmission may
be found in Reisner v Regents of the University of
California (1995) 37 Cal Rptr 2d 518.

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 Access to records
• Covered under sections 27-29
• Protection of health records (s. 29)
• s. 27: disclosure of record to other healthcare
provider or health establishment when it is in
the interest of the patient
• s. 28: use of records for treatment,
teaching/research and the conditions to be
applied
• s. 29: Protection of health records by setting
up ‘control measures to prevent unauthorised
access to the records and to the storage
facility in which, or system by which, records
are kept’
• Offences under s. 29: failure in protecting
records, falsification of records, unauthorised
creation, modification, destruction or copying,
unauthorised data linkage, unauthorised
electronic connection to electronic data,
unauthorised modification of electronic data
– Penalty: punishable by two year imprisonment or
a fine of N250,000.00 or both
• The Cryptic:
– The need for professionalism and data security
– The merits and demerits of electronic records
• The Unknown
– Do patients have a right to their own records? s.
27 may be invoked since it grants access to ‘any
other person’, etc. as is necessary…in the best
interest of the user (i.e. patient).
– Compare: WHO/MNH/MND/95.4; BMA 2008;
Department of Health, 2008.
Access to Records: exemplary law
• This should state that individuals have a right to
apply for access to health information about
them.
• It should allude to relevant legislative measures
or instruments that support this right of access.
• Define health records and state prerequisites
for the granting of the application as well as
fees (DoH, 2010).
 Electronic Health Records: a note
• A necessary component in the 21st Century
• Advantages (Ogundipe, 2011):
– Less space consumed
– Improved cost-effectiveness
– Variable of ‘poor handwriting’ removed
– Improved quality of archived data: prevention of
undue degradation
– Ease of data retrieval for patient care and research
• Ethical challenges/disadvantages
– Unauthorised access by criminal infiltration of
database via the internet or intranet (breach of
confidentiality of a wider scope and resultant
injury to a large number of data subjects at the
same time)
– Non-existent legal framework in respect of
electronic data for the Nigerian health sector
 Beyond Codes and frameworks: The
Freedom of Information Act (2011)
• s. 15(1)(i) of the FOI Act provides exemption of
personal information from disclosure under the
Act; applications for patients’ records shall be
denied
– “Files and personal information maintained with
respect to clients, patients, residents, students, or
any other individuals receiving social, medical,
educational, vocational, financial supervisory or
custodial care or services directly or indirectly from
public institutions..”
• Furthermore, s. 17 states explicitly:
“A public institution may deny an application
for information that is subject to the following
privileges:
a) Legal practitioner-client privilege
b) Health Worker-client privilege
c) Journalism confidentiality privilege
d) Any other professional privileges conferred by the
Act
 Complaints Procedure
• Covered in Section 30
• Procedure established by relevant authority (minister or
commissioner) and should be followed by complainant
• The cryptic:
– voluntary self-regulation despite prescribed standards (complaint
to be directed to head of the health estab???)
– Abuse of process is quite likely:
• No laid down procedure for external oversight of internal complaints
procedure
• Estab may assume ‘jurisdiction’ over the complaint when not appropriate
• Any sanctions for failure to address complaints in a just and timely
manner?
Regulation of Assisted Reproduction: The
Nigerian Situation
Afr J Reprod Health, 2011, 15(3):73-80

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 Regulation of IVF under the Act: s. 50
• No clear regulation yet!
• Only prohibition of reproductive and therapeutic
cloning
– S. 50: (1) A person shall not:- (a) manipulate any genetic
material, including genetic material of human gametes,
zygotes or embryos; or (b) engage in any activity including
nuclear transfer or embryo splitting for the purpose of the
cloning of human being; (c) import or export human
zygotes or embryos.
– Contravention: Five year imprisonment without option of
fine.
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• No direct help may be sought from provisions
related to ‘tissue’ because of s. 64
(interpretations under the act):
– ‘tissue’ means human tissue, and includes flesh,
bone, a gland, an organ, skin, bone marrow or
body fluid, but excludes blood or a gamete.
– However, tissue does not specifically exclude
‘zygote’, ‘embryo’ – what is the implication of this
gap?

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 Other important areas
• S. 38: All private health care providers to establish and
maintain health information system as part of the
national health information system; failure to comply
= N100,000 fine or six months imprisonment or both.
• s. 43: Minister to make ‘regulations’ regarding the
creation of new categories of healthcare personnel to
be educated or trained in conjunction with the
appropriate authority e.g. Is this a time for Certified
Nursing Assistants instead of ‘auxiliary nurses’?
 Other important areas 2
• S. 45: health services to be classified as
essential service and subject to the provisions
of the relevant law.
• Industrial disputes to be taken seriously; total
disruption of health services in public
institutions to be avoided; reasonable
measures to be taken by Minister to ensure
return to normalcy within 14 days.
 Recommendations
• Amendments must focus on:
– Improved interpretation of ambiguous terms
– Improved scope
– Improved statement of reasonable exceptions or
exemptions
– Clearer statement on oversight over complaints
procedure
• The need for Code of Practice – allows for more
explicit understanding of provisions and their
required practical action steps.
 Conclusion
• The National Health Act 2014 is a commendable legislative
initiative in the effort to regulate healthcare delivery in
Nigeria.
• Despite its relatively comprehensive outlook, it suffers
from some important deficiencies in scope, interpretations
and in terms of applicability in actual practice.
• Lessons learnt from day to day physician-patient
interactions are bound to provide the fundamental
insights required for the refining amendments to the Act
which must come with time.
“For time, that curious teacher of the ages, will
prove the known, give form to the unknown,
and expose the cryptic; in the light of time, all
shall be known”
- Anonymous
 “There is a tide in the affairs of men which
taken at the flood, leads on to fortune;
Omitted, all the voyage of their life is bound in
shallows and in miseries. On such a full sea are
we now afloat, And we must take the current
when it serves or lose our ventures”
- Shakespeare in Julius Caesar

Let us seize the moment provided by this law to do our

own best for humanity!
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Thank you very much!!!