Following the recent passage of the National Health Bill by the National Assembly President Goodluck Jonathan signed it into law a fortnight ago. The purport of the National Health Act, 2015 is to provide a comprehensive framework for the regulation, development and management of a national health system and set standard for rendering health services in the Federation. In view of the implications of the legislative intervention in the health care delivery system in the country we have deemed it fit to draw the attention of the Nigerian people to certain provisions of the Act.

 

Before reviewing the said provisions it is pertinent to note that the fundamental right of Nigerians to health is guaranteed by Article 16 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria, 2004 which provides as follows:

 

1. Every individual shall have the right to enjoy the best attainable state of physical and mental health.

 

2. States parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

 

Over the years the Government abandoned the health sector to the extent that public hospitals became consulting clinics in the 1980s. They have since been reduced to mortuaries. In the circumstance, the few rich people in the society and top public functionaries fly abroad for medical check up and medical treatment. To the embarrassment of the nation many Nigerians are flown to India, Egypt and South Africa for medical treatment. Section 46 of the National Health Act which bars public officers from traveling overseas for medical examination and treatment permits the Minister of Health to grant a waiver in certain situations!

 

Contrary to the reports in the media the Act has not significantly addressed the funding of health services and the upgrading of local medical facilities to meet international standards. On funding the Act has created a Health Provision Fund to which the Federal Government shall contribute one percent from the consolidated revenue fund. Fifty percent of the fund shall be earmarked for the provision of basic minimum package of health services to citizens (See section 11 (3) of the Act). Although every citizen is entitled to a basic minimum package of health services (section 15) it is the Minister of Health who has the prerogative to prescribe the set of health services that will constitute the basic minimum package (section 64).

 

In determining persons who may be entitled to exemption from payment for health services in public health establishments the Minister shall have regard to “the needs of vulnerable groups such as women, children, older persons and persons with disabilities.”(Section 3) however, the National Council on Health is under an obligation to “ensure that children between the ages of zero and five years and pregnant women are immunized with vaccines against infectious diseases”(section 5). A health care provider, health worker or health establishment shall not refuse a person emergency medical treatment for any reason whatsoever (section 20). Having regard to the enormous costs of medical services the grant of one percent from the consolidated revenue of the Federal Government is inadequate for providing the so called basic minimum package of health services to the Nigerian people. The National Assembly is therefore called upon to amend the National Health Insurance Act to embrace all citizens with the provision of universal health coverage insurance scheme. In other words, the mandate of the NHIS should not be limited to workers alone.

 

 

Apart from the above observations we wish to point out that the National Assembly has violated the fundamental rights of Nigerians to life, human dignity, privacy and freedom of thought, conscience and religion by authorizing medical doctors to remove organs of living persons in Nigeria without their informed consent. In order to appreciate the extent of the infringements of the human rights of the Nigerian people sections 48 and 51 of the National Health Act, 2014 which have made elaborate provisions for organ transplantation, are hereby reproduced below:

 

48. (1) 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 from 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; and

 

(c) in accordance with prescribed protocols by the appropriate authority.

 

(2) A person shall not remove tissue which is not replaceable by natural processes from a person younger than eighteen years.

 

(3) A tissue, blood or a blood product shall not be removed from the body of another living persons for purpose of merchandise, sale, or commercial purposes.

 

(4) A person who contravenes the provisions of this section or fails to comply therewith is guilty of an offence and liable on conviction as follows:

 

(a) In the case of tissue, a fine of N1,000,000 or imprisonment of not less than two years or both; and

 

(b) in the case of blood or blood products, a fine of N100,000 or imprisonment for a term not exceeding one year or both.

 

51. (1) A person shall not remove tissue from a living person for transplantation in another living person or carry out the transplantation of such tissue except:-

 

(a) In a hospital authorised for that purpose; and

 

(b) on the written authority of:

 

(i) The medical practitioner in charge of clinical services in that hospital or any other medical practitioner authorised by him or her; or

 

(ii) In the case where there is no medical practitioner in charge of the clinical services at that hospital a medical practitioner authorised thereto by the person in charge of the hospital.

 

(2) The medical practitioner stated in subsection

 

(1)(b) shall not be the lead participant in a transplant for which he has granted authorisation under that subsection.

 

(3) For the purpose of transplantation, there shall be an independent tissue transplantation Committee within any health establishment that engages in the act and practice of transplantation as prescribed.

 

Since all hospitals and other medical establishments have been mandated to admit and treat all persons in emergency situations the National Assembly have licensed medical personnel to engage in unauthorized surgical operations for the purpose of removing vital organs of living persons. Even though there are stringent penalties for commercializing any organs removed from any living person why should the consent of the donor be dispensed with?

 

In other parts of the Third World where similar dangerous legislation exist organs removed from living or dead persons are sold and transported to western countries where they are in high demand. Indeed, we have confirmed that the offending sections 48 &51 of the Act were introduced to the Bill due to pressures from an influential foundation based in the United States.

 

In view of the immorality and illegality of sections 48 & 51 of the Act we call on the National Assembly to repeal them without any delay. The status quo before the enactment of the law whereby a donor of an organ had to give his/her informed consent should be restored.

 

Falana, SAN delivered this paper at a press conference in Lagos recently.

 

by FEMI FALANA