Uproar over new health law

It seems harmless enough: “a person shall not remove tissue, blood or blood product from the body of another living person for any purpose …”

Then the clincher: the above provision may be waived “for medical investigations and treatment in emergency cases.” The above are among the provisions of the National Health Bill signed into law by President Goodluck Jonathan on December 14, 2015.

Shorn of legalese, the law allows medical practitioners to remove body parts with – and most scandalously, according to lawyers – without the consent of people under the umbrella of “medical investigations. Even, the choice of waiving consent for treatment in emergency cases ought not be legalised, lawyers say, adding that the law is made worse by the apparent blanket permission to remove body parts from human beings – whether the patient grants approval or not – for medical “investigations.” Sonnie Edwuowusi of the Project for Human Development (PHD) and constitutional lawyer, Mr. Femi Falana (SAN) believe the newly signed law has unwittingly legalised trading in human body parts.

Concerned lawyers have kicked against the provision while the bill was being considered. They attended public hearings and vigorously canvassed against it. Somehow, it was passed by the National Assembly and signed by President Jonathan. Today, it is legal: Doctors can remove body parts from people without their consent, for medical investigations. Section 48 (1) of the law states: Subject to the provision of section 53, a person shall not remove tissue, blood, or blood product from the body of another living person for any purpose except; (a) With the informed consent of the person whom the tissue, blood, or blood product is removed granted in prescribed manner; (b) That the consent clause may be waived for medical investigations and treatment in emergency cases Section 49 of the Act prescribes punishment for the violators of the law while section 52 names those who may exercise as registered medical practitioners and dentists. In an interview with the Daily Times, Ekwuowusi, expressed objected to the law. He said: “My humble view is that Section 48(1) of the Act, which permits the removal of the tissue, blood or blood product from another living person “without his informed consent” for “medical investigations” and “treatment in emergency cases” is a very dangerous piece of legislation which not only infringes on the fundamental human rights of the citizens, but also capable of encouraging the already thriving “business” in human and organ trafficking in Nigeria.”

He added: “Strangely enough, the interpretations of the phrases “medical investigation” and “treatment in emergency cases” are not provided in the Act. This means that anybody under pretext of carrying out “medical investigations” or “treatment in emergency cases” could get hold of any non-consenting living person and remove his or her tissue or blood or blood product. This obviously could lead to a willful bodily injury or murder of a human being in its true sense.” Section 48(2) of the Act states: “A person shall not remove tissue which is not replaceable by natural process from a person younger than 18 years.” In simple terms, according to Ekwuowusi, the law allows medical practitioners to remove tissue from a person who is above 18 years.

“The section has no consent clause, meaning that anyone under the guise of medical investigation can remove the tissue of any living person who is above 18 years,” he said. He said further: “Section 51 is even more scandalous. It permits the removal of a tissue or organ of a living person for transplantation in another living person WITHOUT ANY CONSENT CLAUSE. The only thing it says is that the removal should be carried out “at a hospital authorised for that purpose” or with “the written authority of a medical practitioner in charge of the clinical services…”

Giving a legal opinion on the provision, Ekwuowusi said: “The cardinal rule of interpretation of statutes in Nigeria is that where the meaning of the language used in the statutes is clear and simple; the court must give effect to that meaning without inferring any other construction to that meaning. This was the decision of the Nigerian courts in *IBWA LTD V IMANO LIMITED* (1988)3 NWLR Page 633 at 660l *SAVANNAH BANK LTD & ORS V AJILO & ORS* (1987) 2 NWLR at 421. Therefore, the meaning of the language of sections 48 and 51 of the National Health Act is clear and unambiguous.” Coming from the highest law making body in the country, Ekwuowusi considered the health bill a scandal, especially because stakeholders had protested the inclusion of those clauses at the public hearing. He said:“I participated in the public hearing and some of the meetings culminating in the making of the National Health Act. In those fora, the stakeholders specifically raised objections to sections 48, 51 and 52 of the Act.

“It is a big scandal that in a country where uncountable Nigerians are dying owing to inaccessibility to basic primary health care, some legislators sponsored a bill to legalise the exploitation and trafficking in human tissues and human organs. Activist lawyer, Mr. Femi Falana(SAN)also disagreed with the law. In a written reaction made available to Daily Times,he reviewed the bill alongside constitutional provisions.

“Since medical doctors have been empowered to decide when to remove organs from living persons, Section 51 of the Act therefore constitutes an infringement of the rights of citizens to life, dignity of their persons as well as the rights to privacy and freedom of thought, conscience and religion guaranteed by Section 33, 34, 37 and 38 of the Constitution,” according to Falana.

He declared: “In Medical and Dental Practitioner Disciplinary Tribunal v Okonkwo (2001) WRN 1, the Supreme Court held that a patient has the constitutional right to reject a life-saving treatment on religious ground. “In the leading judgment of the apex court, Justice Emmanuel Ayoola held inter alia: “The patient’s constitutional right to object to medical treatment or, particularly as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 Constitution. The right to privacy implies a right to protect one’s thought conscience of religious belief and practice from coercive and unjustified intrusion, and one’s body from unauthorised invasion.

“The right to freedom of thought, conscience or religion, implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and right not to be coerced into acting contrary to religious belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy.”

It is pertinent to point out that it is the donor, and not the medical doctor or manager of a hospital who has the power to authorise that an organ be removed from a living Nigerian citizen. The definition of “organ” in the law includes kidney, liver, heart, lens, ovarian eggs and sperm. The proponents of the law are likely to refer to section 48 which provides for “informed consent”, but such consent “may be waived for medical investigations and treatment in emergency cases”.

Falana said: “As far as the fundamental right of a Nigerian to dignity is concerned, there can be no waiver of consent under any medical condition. Even where a patient is unconscious or incapable to give informed consent, the power is transferred to a next of kin or parent in the case of children.

“Since the consent clause may be waived for “medical investigation and treatment in emergency cases,” it does appear that medical practitioners and hospitals have been licensed to remove tissues and organs of living Nigerian citizens as any medical condition may be considered an emergency. By denying patients the right to give consent or authorise the removal of vital organs from their bodies, the National Assembly has empowered doctors to subject Nigerians to degrading and inhuman treatment.

“In other words, Section 51 of the Act constitutes an egregious assault on the humanity of Nigerians. The provision of the law cannot be allowed to be implemented in any civilized society. Therefore, the National Assembly should expunge it from the law without any delay.”