Issues Behind Current Face-off Between NMA And JOHESU

Doctors under the auspices of the Nigeria Medical Association and Joint Health Sector Unions, representing other unions in the country’s health sector are presently at logger heads with each other over matters relating to the proposal for the Repeal And Re-enactment of Medical And Dental Council Of Nigeria Act, 1988. Though the Bill is still at the early stage of discussion at the National Assembly, it has already generated a lot of heat leading to the threat of industrial action by JOHESU. Onyebuchi Ezigbo presents the various positions canvassed by the unions and professional associations in the health sector

The country recently witnessed a flurry of hostilities between the key unions and professional bodies in the health sector. The health sector groups, the Nigeria Medical Association (NMA) and Joint Health Sector Unions (JOHESU) in the last few days or weeks, had engaged each other in exchange of words in the media over a proposed amendment to the Medical And Dental Council Of Nigeria Act.

On Monday February 1, 2021, the Senate held a Public Hearing on the Medical and Dental Council of Nigeria (Repeal and Re-enactment) Bill SB. 480 and four other Bills. The Bill seeks to repeal and re-enact the Medical and Dental Practitioners Act Cap M8. LFN 2004, which was enacted by Decree 23 of 1988 and amended by Decree 78 of 1992. However, the Public Hearing ended in controversy with the Joint Health Sector Unions (JOHESU) literally staging a walk-out to protest alleged unfair hearing given to them at the sitting .

Since then, the matter had degenerated into name calling and use of abusive words against each other by the Nigeria Medical Association (NMA) and JOHESU leadership in a manner that is highly unbecoming of professional bodies expected to function harmoniously to promote a sector as sensitive as the healthcare sector.

NMA’s Position on the Proposed Bill

Nigerian Medical Association said it is happy that the Bill seeks to reinforce the perpetuity of the Medical and Dental Council by making it immune to frequent and unnecessary disruptions through dissolution each time there is a change of government.

In a statement signed by the NMA president, Prof. Innocent Ujah, the association said the Bill makes it easier for the Medical and Dental Practitioners’ Disciplinary Tribunal to try cases of professional misconduct against doctors in a timelier manner. It also provide more realistic sanctions against doctors who are found guilty by the Disciplinary Tribunal.

It said: “The current state of affairs is such that cases linger for years due to the frequent dissolution of the Council and the Disciplinary Tribunal. And when the Tribunal finds a doctor guilty of professional misconduct, the extant law does not permit it to suspend such a doctor for more than six months. The next most severe sanction is erasure from the Medical Register.

“We support the clear delineation of the function of the Council proposed in the Bill. The Passage of the Bill and assent will settle the unnecessary confusion, inter-professional acrimony and friction in the health sector”.

The Long title of the Bill states clearly that it is “A Bill to Repeal the Medical and Dental Practitioners Act 1988 and Enact the Medical and Dental Practitioners’ Bill to Establish the Medical and Dental Council of Nigeria for the Regulation and Control of the MEDICAL and DENTAL PROFESSIONS!

For further clarity section 2 of the Bill states that: “The provisions of this Bill shall apply to the professions of medicine and dentistry and all persons who are authorised to practice as medical practitioners or dental surgeons under this Bill “. According to NMA, it is surprising that anyone would claim that the Bill seeks to regulate any other healthcare professions. The provision of S.4(9) being bandied around by some people as an attempt to regulate other professions is noticeably clear in its provisions that it is about medical practitioners and dental surgeons.

It states that one of the proposed functions of the council would be: “making regulations for the operation and management of clinical diagnostic centres for the practice of Pathology or Radiology and any other branch of medicine and dentistry determined by council, provided that the regulations shall provide for fully registered practitioners to manage the diagnostic centres.” Please note the proviso there! The Council’s regulations would only apply if it is related to registered medical practitioners and dental surgeons i.e., doctors and dentists. It did not say Council shall make rules for any other professions.“

NMA maintained that doctors practice medicine but do not seek to practice Pharmacy, Medical Laboratory Science, Radiography or any other professions and occupations of persons who are not qualified to be registered as medical practitioners or dental surgeons.

The association said, “while we may agree that the title “apothecary” is not a title generally used by doctors, we find it amusing that someone would propose that doctors in Nigeria should cease using the title “doctor”. “Doctor” is universally known as the title of practitioners of Medicine. The claim that the provisions of S.42 (1) of the Bill excludes other persons like holders of PhDs and Doctor of Veterinary Medicine etc from legitimately using the title “Doctor” is misconstrued.

“While paragraph (b) of that subsection states no person other than a Registered medical practitioner shall “take or use the title of physician, surgeon, doctor or licentiate of medicine, medical practitioner,apothecary”, paragraph (c) of that subsection, makes an exception for those other than medical practitioners who have legitimate and reasonable reason to use the title “Doctor”.

“ In any case, the provisions of S.42 of the Bill is the same as those of the extant laws of the Federation of Nigeria as contained in S.17(1) of the Medical and Dental Practitioners’ Act Cap M8 LFN, which is also similar to the provisions of the expended Medical and Dental Practitioners Act of 1963. We are not aware of any holders of PhDs, DVM, DD or any other similar degrees which give them reasonable and legitimate grounds to use the title “Doctor”, who have been prevented from using it.

“The law only seeks to protect members of the public from quacks, crooks and charlatans who deceive members of the public into thinking that they are medical doctors. Unfortunately, due to the failure of the law enforcement and prosecutorial authorities in our country, quacks and charlatans are brazenly and openly referring to themselves as doctors despite the existence of a law against it.”

Again, NMA said the complaint that S.45 (3) (e) seeks to enable doctors and nurses to usurp the duties of pharmacists is misconstrued especially when viewed on the background of the preceding S.45 (3) (d). The two paragraphs read: “(d). Only a registered pharmacist shall dispense medicines prescribed by a registered medical practitioner or dental surgeon. (e). “Nothing in the foregoing shall preclude a registered medical practitioner or dental surgeon, or a registered nurse under the supervision of a doctor or dentist, from providing medicines in the absence of a registered pharmacist”

“It is clear that the Bill while upholding the right of the registered pharmacist, only seeks to enable doctors and nurses use medication on patients in the course of their duties where it is very reasonable and conscionable not to have a pharmacist around. For example, the use of anaesthetic agents during an operation, emergency drugs in the Intensive Care Unit, an emergency room or in the ward.“

NMA believed that the Medical and Dental Council of Nigeria (Repeal and Re-enactment) Bill is intended to further strengthen the Medical and Dental Council of Nigeria in regulating the medical and dental professions to protect the public by ensuring that registered medical practitioners and dental surgeons are competent persons who practice safe, ethical, and responsible medicine.

“We fully support the Bill and call upon members of the Professions Allied to Medicine and Dentistry and members of the public in general to support the Bill for the advancement of quality healthcare delivery in Nigeria.”

The association accused JOHESU of blackmailing the Senate and particularly the Chairman of the Senate Committee on Health over matters they could not logically advance during the transparently managed Senate Public hearing on 5 health related Bills, held on Monday, February 1, 2021.

It described the effort of the Senate as timely, appropriate, and necessary to bring the regulation of Medicine and Dentistry in Nigeria up to date with respect to advancements and developments in healthcare nationally and internationally. “The Nigerian Medical Association wholeheartedly welcomes the Bill,” it added.

JOHESU’s Position on the Proposed Amendment

While stating the position of other unions in the health sector, JOHESU’s Chairman, Comrade Joy Bio Josiah said that after the union’s critical appraisal of all issues, JOHESU/AHPA “wishes to posit thus on the various issues canvassed by the NMA”.

On the right of pharmacists to drug dispensary, after it was challenged that doctors cannot carry the title of Apothecary because it is Pharmacists and Pharmacies that are globally Apothecaries, the NMA now says “while we may agree that the title “Apothecary” is not a title used by Doctors….. A sense of integrity should have compelled a more honourable group to accept it erred in simple terms.

On the use of the ‘Dr’ Appellation, JOHESU said its position is that any healthcare worker could assume the use of the title of “Doctor” based on the National Universities Commission (NUC) approved curricula. Already, the NUC has approved a Doctor of Pharmacy and Doctor of Optometry for Pharmacists and Optometrists. Others will follow suit and so MDCN cannot and will not be allowed to legislate on a NUC jurisdiction like we shall resist in other regulatory realms where exclusivity is required for sanity.

Again JOHESU said the proviso in Section 45(3)(d) and 45(3)(e) is the perfect symbol of how Medical Doctors and NMA intend to extend regulation and control beyond the frontiers of Medical Doctors and Dentists, and seek for trouble by standing on age-long hypocritical platitudes.

S.45(3)(d) reads only “a Registered Pharmacist shall dispense medicines prescribed by a Registered Medical Practitioner or Dental Surgeon”. While Section 45(3)(e) reads “Nothing in the foregoing shall preclude a registered Medical Practitioner or Dental Surgeon or a registered Nurse under the supervision of a doctor or dentist from providing medicines in the absence of a registered Pharmacist”.

JOHESU queried the jurisdiction of the MDCN to create rules for Pharmacists like it seeks in Section 45(3)(d) when it says the MDCN Bill is limited to Medical Doctors and Dentists?

“Why did the MDCN and NMA decide to bother themselves about what should happen in the absence of a Pharmacist where they have no jurisdictional competence even in their admission that the scope of their law is for medical doctors and dentists when they have not told us what should happen in the absence of medical doctors and dentists which is the scope within their boundary and limitations?”

JOHESU further argued that the two well established Pharmacy statutes vis the Poison and Pharmacy Act and PCN Cap P.17 LFN 2004 are unambiguous about rights and privileges in sales, dispensing, procurement, importation, exportation, manufacturing, distribution and related responsibilities about drugs in Nigeria.

“The PPA Cap 535 LFN in part 3 Sections 7 and 8 makes it clear that only Registered/Licensed Pharmacists can dispense medicines. It also defines the framework for the handling of medicines in emergencies confronting Medical Doctors in Nigeria.

“Section 1(1)(d) of the PCN Act which gives the PCN powers to regulate and control Pharmacy practice in all aspects and ramifications in Nigeria forbids any other regulatory agency from dabbling into Pharmacy practice in Nigeria”.

The union said that more than 15 Federal High Courts in various parts of Nigeria have affirmed that the PCN has a specific approbation in law to regulate and control Pharmacy practise in all its aspects and ramifications. It cited an example of the ruling of October 2007 at the Federal High Court in Lagos, in a suit by the Guild of Medical Directors vs PCN, where the court declared that the PCN had a specific approbation in law to regulate and control Pharmacy practice in all its aspects and ramifications in both the public and private sectors in Nigeria.

It said that appeal to the ruling is also pending at the Court of Appeal, Lagos which necessitates the need to invoke Order 41 of the Senate rules to immediately step down Sections 45(3)(d) and (e) from further consideration in the MDCN Bill.

JOHESU gave further reasons why it feels Section 45(3)(d) and (e) must be expunged as follows: The spirit of the relevant Pharmacy Acts vis the Poison & Pharmacy Act in Part III Sections 7 & 8 and the PCN Act CAP P.17 LFN 2004 in Section 1(1)(d) which gives the PCN a specific approbation in law to regulate and control Pharmacy practice in all its aspects and ramifications in Nigeria.

It said the Federal High Court, Lagos in a landmark ruling in October, 2007 affirmed the powers of the PCN as the ONLY body that can regulate Pharmacy Practice at both the private and public sector levels in Nigeria, adding that MDCN logically cannot therefore exercise the powers of the PCN to regulate Pharmacy practice through the back door.

JOHESU said that Healthcare remained a global and internationally driven practice. One of the golden rules and norms in the prescribing and dispensing of drugs is that both the prescriber and the dispenser of medicines are forbidden to have pecuniary interest or gain so that the patient enjoys the best clinical decision that must be made by the prescriber.

“It is interesting that in the MDCN draft bill, no consideration or thought was put in print for a next line of action in the absence of the Medical Doctor or Dentist.

“Specifically, there was no clause to allow Nurses or any other practitioner to step in the shoes of the Doctor/Dentist which would have been within the jurisdiction of the MDCN. Rather strangely, the MDCN bill seeks to give Doctors/Dentists a loophole in the private sector especially to continue the many years of wreckless use of drugs through untrained hands.”

JOHESU noted that the draft Bill cannot legitimise the unlawful act of sales and dispensing of drugs by doctors under whatever guise. According to the union, the scenario in (2) above is what has entrenched and formalised quackery in the Health system in Nigeria because private hospitals promote quackery through a periodic discharge of untrained elements. Such undesirable characters evolve as Auxiliary Nurses, Dispensing Assistants/Clerk etc.

“Section 45(3)(e) in its totality will encourage the continued exploitation of the Nigerian people because WHO studies confirm pecuniary indulgences of private hospital facilities in the sales and dispensing of drugs. The study declares that prices of drugs in private hospitals is 184 per cent above baseline prices in public hospital pharmacy and 192 per cent above what is obtainable in private pharmacies. It is this huge profit that has always incentivised private hospital facilities to unlawfully stock drugs when they also fail to engage Pharmacists.

Point of Disagreement With NMA

In one template NMA says the MDCN Bill is to regulate and control only Medical practitioners and Dentists. “In desperation, the true intendment is to violate the domain of Medical Laboratory Sciences and Radiography. This clearly manifests in Section 4(a) which states to wit “the MDCN shall make regulations for the operation and management of Clinical Diagnostic Centres.

“In healthcare practice, who are the health professions who work and manage Clinical Diagnostic Centres which are domiciled in Clinical/Medical Laboratories or X-ray Centres as well as related facilities?

“You do not have to be rich in common-sense to appreciate that this is a direct violation of the professional privileges of Medical Laboratory Scientists and Radiographers who hold sway ordinarily in these diagnostic facilities.

“The NICN and several High Courts have validated the rights and powers of Medical Laboratory Scientists to take charge of the Medical Laboratory facilities through the instrumentality of the MLSCN Act, but even the Federal Ministry of Health aids its Medical Doctors to violate valid court orders and judgement in this regards,” JOHESU said.

The Grouse against Senate Commitee Public Hearing

JOHESU expresed dismay at the February 1, 2021 Public Hearing that when Oloriegbe was reeling out his “decree” on the rules at that hearing, he insisted references must not be made to court processes or judgements.

It said: “This is contrary to Order 41 of the Rules of Proceeding of the Senate which empowers the Senate to step down any matter that is pending in a law court when considering any Bill.

“In the light of the foregoing, JOHESU said Section 4(9) must be expunged from the MDCN bill in its entirety in conformity with Order 41 of the Senate rules”.

Moving forward, JOHESU said the way out remains that doctors and private hospitals that cannot afford to engage Pharmacists should send their prescriptions to community pharmacies that are registered by PCN.

On the accusation of blackmailing the Senate and in particular Dr. Ibrahim Oloriegbe, the Chairman of Senate Committee on Health, JOHESU said it remained “a figment of the imagination of the NMA hierarchy.

At the Public Hearing of February 1, 2021, JOHESU said that the committee chairman, Senator Ibrahim Oloriegbe gave MDCN, NMA and a representative of Pathologists the floor three times spanning over fifteen minutes while professions like Pharmacy, Medical Laboratory Science, Nursing, Radiography and JOHESU representative got two minutes each to canvass their positions.

“JOHESU therefore insists that the Senate must probe the February 1, 2021 Hearing and reorganize the Senate Committee on Health subsequently to prevent “vindictive purposelessness”.