Patient’s rights to refuse treatment in Nigeria

Anu Toki LLB, BL, LLM
Member, Nigerian Bar Association
Research Fellow at the Center for Medical Law Research and Development
Medicolegal Consultant at Medical Tutors Ltd an accredited CME provider to the Medical and Dental Council of Nigeria.

INTRODUCTION
The right of selfdetermination, that is the right to ultimately decide what will and will not happen to his or her body, is arguably the most important of a patient’s right. A patient possessing the capacity to give consent to a medical treatment has a corresponding right to refuse such treatment even if refusal would lead to his/her death. The patient’s right to refuse medical treatment is a universally recognized principle of liberty. The Nigerian patient’s right to refuse medical treatment is protected by the Nigerian 1999 Constitution with particular reference to Sections 35, 37 and 38 which provide for the rights to personal liberty, privacy, freedom of thought, conscience and religion.

THE NIGERIAN CASE LAW:
The world is tilting towards preserving the autonomy of the patient over medical paternalism.

The Supreme Court of Nigeria buttressed this point in its decision in the case of Medical and Dental Practitioners Disciplinary Tribunal vs. Dr. John E. N. Okonkwo.

In that case, 29 year, Martha Okorie (the patient), her husband and Dr Okonkwo were members of the Jehovah’s Witness sect that disapproves of blood transfusion. The patient had difficulty walking and had severe pain in her pubic area consequent upon a delivery in a maternity home. The patient refused to give informed consent after warnings that her refusal to be transfused with blood may lead to her death.

The doctor discharged her with a note stating that she refused to give consent to the treatment. She was taken to Dr. Okonkwo’s hospital with a card directing that no blood transfusion be given to her. Her husband also signed a document stating that she may not be transfused with blood. They both released the hospital and its personnel from any liability on the issue. The respondent proceeded to treat the patient without blood transfusion.

She died 5 days later.

The respondent was charged before the Medical and Dental Practitioner Disciplinary Tribunal on two counts of negligence and acting contrary to his oath as a medical practitioner and thereby conducting himself infamously in a professional respect contrary to the Medical and Dental Practitioner Disciplinary Act. The Tribunal found him guilty and suspended him from the profession for 6 months. The respondent appealed to the Court of Appeal which supported his appeal. The Tribunal thereafter appealed to the Supreme Court. Its appeal was denied. The court held that a patient may validly refuse medical treatments or procedures recommended by a doctor. Therefore, the doctor was held not liable.

To consent to or refuse treatment, the patient must have the mental capacity to make the decision. That is, the patient must be an adult of sound mind possessing the ability to use and understand the information given by the health care provider to make a decision. For consent to or refusal of treatment to be valid, it must have been made voluntarily after the patient has been appropriately and adequately informed.

NIGERIAN LEGISLATION:
Section 23 of the National Health Act, 2014, provides that every health care provider shall give a user relevant information pertaining to his state of health and necessary treatment relating thereto. The information should include the user’s health status except in circumstances where there is substantial evidence that the disclosure of the user’s health status would be contrary to the best interests of the user.

It should also include the range of diagnostic procedures and treatment options generally available to the user. It should state the benefits, risks, costs and consequences generally associated with each option, the user’s right to refuse health services explaining the implications, risks and obligations of such refusal. The health care provider should also inform the user in a language that the user understands and in a manner which takes into account the user’s level of literacy. The doctor should also inform the patient about necessity of treatment, probable duration of treatment and the prognosis.

The patient is therefore free to decide whether or not to submit to the line of treatment prescribed by the doctor for reasons which are rational or seemingly irrational or for no reason at all. Where a patient fails to give informed consent, the medical practitioner may not proceed to administer the medical treatment or life preservative measure as it was in the above mentioned case. Where the patient’s right to refuse treatment is not honoured, a suit premised on assault and invasion of privacy may be validly instituted against the health care provider.

In situations where a doctor is faced with a dilemma emanating from a patient’s refusal to grant informed consent, the doctor may:

i. Adhere to the patient’s instruction on the type of treatment desired by the patient.

ii. Terminate the doctorpatient relationship.

iii. Refer the patient to another medical institution where necessary life preservative measures may be taken.

This paper recommends as follows:

1. The need to intensify efforts in promoting patient’s rights.

2. Medical practitioners should adhere and be made more conscious of informed consent processes and protocols.

Anu Toki LLB, BL, LLM
Member, Nigerian Bar Association

Fonte: World Association For Medical Law (December Issue / January - March 2015)