Olaolu A. Osanyin LLM, MCLM, CHP. Chair, Nigerian Bar Association SLP Section on Medicine & the Law Vice President, World Association for Medical Law.
Being a paper presented at the 58th Annual Conference of the
American College of Legal Medicine (ACLM) at the Millennium
Biltmore Los Angeles California on 25th February 2018.
The Doctor–Patient Relationship is a contract, thus whenever a doctor accepts to treat a patient, the law assumes that a contract has been created between them. A contract is a voluntary agreement whereby a person undertakes to perform an act for a reward. It is legally binding, before a contract can be said to be valid, there must be:
- An offer- an expression of willingness to contract.
- Acceptance- accepting the terms of the offer.
- Consideration- Price/ fee
In Medical Law, the offer is made when the patient requests medical treatment, the initiation of care e.g issuance of patient’s card is regarded as the acceptance, while the Patient’s submission to treatment and payment of the medical bill is consideration.
The terms of a contract between a doctor and his patient is either expressed or implied the example of expressed terms are the consent forms prepared
by the doctor and signed by the patient, while an example of the implied terms is that the doctor will use reasonable care and skill in discharging his obligations to his patient.
The doctor-patient relationship is also governed by legal rights and responsibilities, this article will focus on the legal rights of the doctor and patient with special emphasis on the Doctors’ rights. The emphasis on Doctors ‘rights is imperative by virtue of the fact that patients’ rights are usually discussed on various platforms; this is in contradistinction to the rights of the Doctor which is seldom discussed.
The author is of the opinion that most medical practitioners are not even aware of their legal rights in the doctor-patient relationship.
What are the Rights of the Nigerian Doctor?
- The right to exclusively practice medicine.
- The right against injury or damage to the person and property of the Doctor.
- The right against disease transmission in the course of work.
- The right to be indemnified by an employer for costs incurred after successfully defending any allegations while working underemployment.
- The right to conscientious exemption: The law appears to recognize that some doctors may have a conscientious objection to participating in some procedures that are nonetheless lawful, it is thus a manifestation of the religious and cultural belief for doctor. However, there is the need to balance doctors’ freedom with the rights of patients to receive appropriate treatment in a suitably non-judgmental fashion. If he is not in a position to treat a patient because of non-availability of certain facilities, instruments, medicines, staff etc. he may refer the patient to a suitable place.
Doctor Can Also Limit His Role
A doctor has the right to make various types of reasonable limitations on his doctor–patient relationship. e.g. specialists. Do You Know That a Doctor Can Refuse To Treat Patients Under The Following Conditions?
a. Under the newly passed National Health Act, the health care provider has a right to refuse to treat a patient who is physically or verbally abusive or who sexually harasses any health worker, the only exception to this right are psychiatric patients.
b. The Doctor may refuse to give fresh treatment to a patient if he had previously had a bad experience with the patient.
c. If there is no legal obligation to answer a call to visit the patient at his or her place of residence, the doctor is not bound to attend to such persons.
d. A Doctor treats a patient in an emergency on ethical grounds. It does not mean that he has accepted the patient. He may advise that patient to go to some hospital or a specialist for further treatment.
e. If the doctor himself is not well or free, he has a right to decline treatment.
f. If a patient does not agree with the method of treatment or fee asked, the doctor is empowered to decline treatment.
g. If in the doctor’s honest opinion, he feels
II. A doctor can also limit the relationship in other ways e.g. gender preference, some refuse to treat patients outside the hospital environment including the times and frequency of appointments.
III. A consulting physician who examines a patient but does not intend to continue to treat the patient is not legally obligated to do so.
Restrictions on the Rights of the Doctor
A doctor cannot voluntarily leave a patient in the middle of an operation, the doctor is required to notify the patient through a reliable and verifiable source that they will cease treatment of the patient in a reasonable amount of time (1 week to 1 month is probably good), and that the patient must seek help elsewhere.
The Patient’s Rights
- The Patient’s Right to Life: The constitution guarantees every person the right to life, and no one shall be deprived intentionally of his life, with the exception of a court sentence. This provision obliges the doctor to take all necessary measures and precautions to safeguard the life of his patient. This constitutional safeguarded right also makes euthanasia a crime in Nigeria.
- The Patient’s Right to Dignity of Human Person: This requires a duty on the part of the doctor to respect and promptly attend to the patient’s needs.
- The Patient’s Right to Personal Liberty: the provision criminalizes the unlawful detention of patients because of their inability to pay medical bills.
- The Patient’s Right to Privacy: The Doctor is only expected to disclose aspects of a patient’s information in the interest of public safety, public health or a court order.
- The Patient’s Right to accept or refuse medical treatment even if he or she knows that such refusal will lead to death. For this right to be enforceable the patient must be an adult with competent mental faculty.
- The Patient’s Right to free choice in the selection of his physician.
- The Patient’s Right to a second medical opinion.
- The Patient’s Right to refuse to be informed about his medical condition.
- Right to continuity of medical care.
a. To take care of his or her health.
b. To care for and protect the environment.
c. To respect the rights of other patients and health providers.
d. To utilize the health care system properly and not abuse it.
e. To know his or her local health service and what they offer.
f. To provide health care providers with relevant and accurate information for diagnostic, treatment, rehabilitation or counselling purposes.
g. To advise the health care providers on his or her wishes with regard to his or her death.
h. To comply with the prescribed treatment or rehabilitation procedures.
i. To enquire about the related costs of the treatment and / or rehabilitation and arrange for payment.
j. To take care of health records in his or her possession.
With the constant and steady increase in allegations of medical malpractice against Nigerian Doctors, it has become imperative for Doctors, Patients and most importantly Lawyers to understand the legal and medicolegal principles guiding medical practice in Nigeria.
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