The Overview Of Medical And Health Right And The Extent To Its Practice In Nigeria
By OKETOYIN Dorcas Adenike
Every citizen of a state has a right that is entrenched in the constitution of the state. It is through the constitution of that state that the rights of the citizens are being protected. It is through this codified rights in the constitution that gives the citizens the privilege to enforce their rights when it is being violated.
Everyone has the right to health. It relates to both the right of individuals to obtain a certain standard of health and health care, and the State obligation to ensure a certain standard of public health with the community generally.
Nigeria adopts a dualist approach in receiving international law like most common law countries; meaning that notwithstanding ratification, treaties acquire legal force only upon enactment by the National Assembly. In other words, domestication of an international treaty is a necessary condition for the application of the treaty in the country.
Domestication of an international treaty is a necessary condition for the application of the treaty in Nigeria. Apart from the laws made by the legislation, which is the local statutes and also the received English laws, every international laws to have the full force of the law in Nigeria, has to be domesticated (it has to pass through the legislative procedure in Nigeria) .
Although the 1999 Constitution of Federal Republic of Nigeria (as amended) denies legal recognition to the right to health as well as other social and economic (socio-economic) rights, the domestication of the African Charter in 1983 has introduced monumental changes to the legal status of these rights in the country. With the exception of the African Charter, which has been incorporated into domestic legal order, no other treaty bearing on the right to health has direct application in Nigeria.
This article addresses the medical and as well as the health right of citizens of the Federal Republic of Nigeria -the extent to which these rights are being applied.
WHAT IS HEALTH RIGHT?
The right to health was first articulated in the WHO Constitution (1946) which states that: “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being…”. The preamble of the Constitution defines health as: “.. a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”.
The WHO constitution enumerates some principles of this right as healthy child development; equitable dissemination of medical knowledge and its benefits; and government-provided social measures to ensure adequate health. States should ensure both freedoms and entitlements. The former include the right to control one’s health and body, including sexual and reproductive freedom, and the freedom from interference such as torture, non-consensual medical treatment and experimentation. Entitlements include access to adequate health care facilities and services, as well as appropriate State measures in relation to the socio-economic determinants of health, such as food, water and sanitation, safe and health working conditions, housing, and poverty.
From the Article 25 of the United Nations’ 1948 Universal Declaration of Human Rights states that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services.”
WHAT IS PATIENTS’ RIGHTS?
According to World Health Organization’s definition of Patient right in European Observatory on Health Systems and Policies, a patient right is” a set of rights, responsibilities, and duties under which individuals seek and receive health care services.”
Because patients’ rights are often not explicit, the composition of the set varies from country to country and over time.
According to the Nigerian Patient Bill of Right, the rights of the patient include but not limited to the following;
- Right to be respected.
Every person is a unique individual who is responsible for their own health (except if they have diminished capacity and are unable to act on their own behalf).
Each person´s care should be tailored to their particular needs.
Each person has a right to privacy and to information about their health status and options.
- Right to be informed.
Patients have the right to make decisions based on adequate information regarding their care and treatment.
- Right to participate, or not to participate.
Patients have the right to refuse treatment; they may refuse all treatment or give limited consent to specific treatment(s).
They are entitled to refuse care even if the refusal is considered to be contrary to their best interests; exceptions to this general statement occur if the patient threatens harm to others (i.e., certain infectious diseases).
- Right to equal access to health care.
Every citizen has the right to equal access to comprehensive “basic” health care.
MEDICAL PROFESSIONALS’ RIGHT
Generally, according to Rule 28 Code of Medical Ethics, a doctor has the right not to attend to a sick person. The most obvious of these is if the doctor does not treat patients with the patient’s specific condition. Other reasons why a doctor can deny treatment are, where; the patient exhibits drug-seeking behaviour, the patient is disruptive or otherwise difficult to handle, the doctor does not have a working relationship with the patient’s healthcare insurance provider, due to the doctor’s convictions as seen in Rule 45, Code of Medical Ethics.
However, in Section 20(1) National Health Act, in cases of emergency, doctors cannot refuse to treat patients. In emergencies, responding doctors and other healthcare providers are required to stabilize the patient’s condition regardless of the patient’s ability to pay for the treatment or provide proof of insurance.
LAWS GUIDING MEDICAL AND HEALTH RIGHT IN NIGERIA
There has been recognition of the right to health by several international treaties to which Nigeria is a party to. These treaties include but not limited to; International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of all Forms of Discrimination (CERD), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Nigeria is also a party to two health-related civil and political rights treaties, namely the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Right to Health is guaranteed under the African Charter on Human and Peoples Rights. Nationally, it is guaranteed under Chapter 2 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Health Insurance Scheme Act (1999) etc.
Though Chapter II of the 1999 Constitution of the Federal Republic of Nigeria provides for the socio-economic rights which connects with social needs of Nigerians (such as food, education, health and shelter), the Court of Appeal in Okogie v. A.G Lagos upheld the non-justiciability clause of section 6 (6)(c) of the Constitution which makes it clear that no court has jurisdiction to pronounce any decision as to whether any organ of government has acted” or is acting in conformity with the provisions of Chapter II of the constitution.
PERSPECTIVE TO MEDICAL AND HEALTH RIGHT IN NIGERIA
The Human Rights Measurement Initiative finds that Nigeria is fulfilling 48.2% of what it should be fulfilling for the right to health based on its level of income. When looking at the right to health with respect to children, Nigeria achieves 66.6% of what is expected based on its current income. In regards to the right to health amongst the adult population, the country achieves only 61.7% of what is expected based on the nation’s level of income. Nigeria falls into the “very bad” category when evaluating the right to reproductive health because the nation is fulfilling only 16.3% of what the nation is expected to achieve based on the resources (income) it has available
HEALTH POLICY IN NIGERIA
One of the comprehensive health policy of Nigeria is embodied in the National Health Policy and Strategy to achieve health for all Nigerians, introduced in 1988 and subsequently revised in 2004. Founded on egalitarian principles, the policy seeks to improve the health of all Nigerians by devising a sustainable health system based on primary health care (PHC), that is promotive, protective, preventive, restorative and rehabilitative and which will ensure a socially and economic productive and fulfilling life to every individual.
The policy adopts WHO’s strategy for realizing PHC as elaborated in the Declaration of Alma Ata. The main focus of the National Health Policy is on the National Health System and its Management; National Health Care Resources; National Health Interventions and Services Delivery; National Health Information Systems; Partnership for Health Development; and Health Research and Health Care Laws. Though they are still in embryonic stages, each of these areas represents important components of an effective health system and would, if fully developed and implemented, go a long way in plugging the gaps and inadequacies of the current system.
On the 22nd of June, 2016, a new National Health Policy was developed to accommodate emerging trends. The National Health Policy (NHP) 2016 recognizes that Nigeria is saddled with an unbearable burden of Communicable and Non-Communicable Diseases (NCDs). This is coupled with issues such as low levels of health literacy, poor sanitation and inadequate attention to key social determinants of health.
Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.
Health indicators in Nigeria are some of the worst in Africa. The country has one of the fastest growing populations globally. With 5.5 live births per woman and a population growth rate of 3.2 percent annually, It is estimated to reach 440 million people by 2050. With its rapidly growing population and development challenges, the country drags down the socioeconomic indicators for the entire African continent.
Measured by life expectancy, the general health of the population has taken a nosedive. In 1991, the life expectancy at birth was 53.8 and 52.6 years for females and males respectively but dropped to 48 years for females and 47 years for males in 2005, six years after re-establishing democratic governance.
- There is a need for a revised health policies to accommodate the emerging trends in the health sector.
- Adequate safeguards must be entrenched in the system in order to assure total transparency and accountability on the part of individuals, agencies and institutions entrusted with the task of implementing the programmes. There is an overarching need for a system that would insure against experiences of past decades in terms of historical tendencies to misappropriate public resources. Such a system would serve to restore the confidence of a skeptical public on the ability of its government to execute programmes, to translate goals to reality by providing adequate protection against the burdens of ill-health. In countries with endemic levels of corruption such as Nigeria, the importance of these cautionary notes cannot be glossed over but must be internalized by all stakeholders, foreign and domestic. Certainly, for a health system desperately in need of resuscitation, these measures are not only critical foundational blocks but are imperative for advancement of the state of health of the population and actualization of the right to health.
- The 1999 constitution of Federal Republic of Nigeria
- Federal Ministry of Health (FMH), Revised National Health Policy 2016
- Stanley Ekpa (August 27, 2021) “Whither the right to health in Nigeria?”
- “Nigeria – HRMI Rights Tracker”. rightstracker.org.
- Briggs M et al. A handbook of healthcare ethics and institutional ethics for staff in healthcare institutions. Edmonton. The Bioethics Centre. 1994. pp. A:13-15.
- S. 12 (1) & (2) of the Constitution; African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Chapter 10, Laws of the Federation of Nigeria 1990
- The Right to Health
About the Author
OKETOYIN Dorcas Adenike is a Penultimate Law Undergraduate at the University of Abuja. She has keen interest in the area of law that includes family law, civil law, medical law.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
This publication is not a piece of legal advice. The opinion expressed in this publication is that of the author(s) and not necessarily the opinion of our organisation, staff and partners.
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