POSITION OF ASSOCIATION OF MEDICAL LABORATORY SCIENTISTS, FEDERAL MEDICAL CENTRE, ASABA CHAPTER.

In a letter dated 12th June and published on Thursday, Guardian of June 19th 2014 Medical And Dental Consultants’ Association of Nigeria through their principal solicitor and counsel, Jitti Ogunnye, Esq., had written a letter to the President of the Federal Republic of Nigeria, President Goodluck Ebele Jonathan, GCFR, and had raised a lot of issues . She wrote “ we wish to draw the attention of Your Excellency to the “agreement” said to have been reached at a meeting that was held in Abuja, FCT between the Joint Health Sector Unions(JOHESU) and Assembly of Healthcare Professional Associations(AHPA), with the Secretary to the Government of the Federation (SGF),Senator Anyim Pius Anyim, GCON, Honourable Minister of Labour and Productivity, Honourable Minister of Health, Chairman, Salaries, Income and Wages Commission, Head of the Service of the Federation, and other Top Government Functionaries on the 5th of June 2014.Three of these agreements are of concern to our clients since they have grave implications for the management and survival of the Health Sector in Nigeria”.

 

In the said letter MDCAN raised issues she wants the Government to address, for she has put the Government on notice that she will fully comply with and enhance any directive(including embarking on strike action or withdrawal of services) that the NMA may wish to issue at the expiration of the ultimatum. That MDCAN is constrained to tow this line, in spite of her usual traditional moderation whenever there are strikes in the hospital. The consequence is that no medical and dental consultant shall be available to render service in all our Teaching Hospitals, nationwide, in the event of such a strike action. 

 

MDCANS’ GROUSE

(1) MDCAN is opposed to the appointment of other Medical Personnel as Consultant.

MDCAN is opposed to the circular no MH/PM/138/VOL.111/79 of 16th may, 2014 that restored consultancy status to other Healthcare Professionals and approving the payment of specialist allowance to other Healthcare Professionals.

(2) MDCAN is against Government position to have accepted JOHESU/AHPA’s position and demand that the illegal office of the DCMAC be abolished.

(3) MDCAN is opposed to Government’s agreement with JOHESU to refer a number of issues to Yayale Ahmed committee. These issues include the review of the process of appointment of Chief Medical Directors and Medical Directors of Teaching Hospitals and the agitation of JOHESU/AHPA that appointment of Chief Medical Directors and Medical Directors be made from permanent staff of Teaching Hospitals rather than from the Universities. And the Government will to look into the lopsidedness of advertorial for appointment of CMDs/MDs which is skewed in favour of Medical and Dental Practitioners and the agitation of JOHESU/AHPA that the appointment process be made open to all “competent and qualified health professionals”; the Abdullahi Bello Presidential committee report on harmony in the Health Sector; and the interpretation on who is “medically qualified”

As a result of the issues stated above MDCAN has called on the Government to rescind her decision. And if the Government does not, MDCAN will join NMA in the forth coming industrial action in which NMA has given the Government a 14 days ultimatum. At this juncture one is poised to ask are the reasons given by MDCAN to justify her claims and to down tools cogent? Let us go through her reasons.

(a) Appointment of other Healthcare Professionals as Consultants.

According to MDCAN appointing a Pharmacist, Physiotherapist, Nurse, Medical Laboratory Scientist, etc as consultants in their chosen field are an aberration and an oddity. MDCAN had written “designating or appointing Nurses, Pharmacist or Physiotherapist or Laboratory Technicians ‘Consultants’ in the Health Sector is, therefore, an aberration, and a pervasion of order of care in the Health Sector. Under this order of care, there is no rule that can accommodate this designation or appointment of non-medical doctors as Consultants, even if some managers of Public Hospitals in Nigeria want to invent the absurdity. In the medical profession, Nurse, Pharmacists, Physiotherapists are not trained to make diagnosis and prescribe treatment’. MDCAN went further to write ‘Your Excellency, the oddity and aberration of this agreement by the Federal Government of Nigeria and JOHESU and AHPA on extension of Consultancy Statuses to all Health Professionals is not only that it is professionally and administratively perverse. It is also a legal absurdity.” 

(b) The Government of Nigeria was in error to obey Court Judgment/concede to JOHESU to have restored Consultant Status to other Health Professionals without consulting MDCAN. MDCAN wrote through their lawyer “Your Excellency, our client vehemently disagree with the reported agreements. As our client has consistently maintained, they are an Association of Medical and Dental Consultants, who, exclusive of other Professionals in the Health Sector, are known and addressed as “Consultants”. Negotiating and agreeing with non- medical and dental practitioners in the health sector, and designating them “Consultants”, such that there will now be multiplicity of Consultants in the Teaching Hospitals, is not acceptable; and even if it were, this cannot be done in the absence of Association of Medical Practitioners.(NMA, MDCAN, etcetera)

(c ) MDCAN is of the opinion that the NIC Judgement in favour of JOHESU was in error.

She wrote “following the determination of suit no. NICN/ABJ/238/2012 (the Trade Union members of the Joint Health Sector Unions (JOHESU),namely:(1) Medical and Health Workers Union of Nigeria;(2)National Association of Nigeria Nurses and Midwifes;(3)Senior Staff Association of Universities Teaching Hospital, Research Institutes and Associated Institutions;(4)Nigerian Union of Pharmacists, Medical Technologists and Professions Allied to Medicine;(5)Non Academic Staff Union of Educational and Associated Institutions vs Federal Ministry of Health) on Monday, the 22nd day of July,2013 by Hon B.A Adejumo (Presiding Judge),Hon. Justice B.B Kanyip and Justice M.N. Esowe, wherein the National Industrial Court held that a few non-medical and dental practitioners aberrantly appointed as Consultants in University College Hospital, Ibadan should continue to enjoy that status, the Federal Ministry of Health (that is the Federal Government of Nigeria) appealed that decision, and our client, MDCAN also approached the National Industrial Court with an application to set aside the judgment. The appeal and application are pending in courts.

(D) That the action of the Government to obey Court Judgment amounts to contempt.

MDCAN through their lawyer wrote “the so called agreement on the extension of consultancy status to all Health Professional and thus purported issuance of a circular to that effect is contemptuous of the courts. It undermines and subverts the majesty, dignity, and integrity of the courts; it is illegal and it is an affront on the rule of law.”

(E) MDCAN rejects the abolishment of the office of DCMAC

MDCAN wrote through her lawyer “Your Excellency, our client also rejects the agreement to abolish the post of Deputy Chairman Medical Advisory Committee (DCMAC).Our client’s position is that the creation of the post, which has been in our Teaching Hospitals for more than twenty years, is within the administrative powers and competence of the Governing Boards of the Teaching Hospitals as defined in their respective Governing statutes establishing them. This position, which facilitates smooth management of the Teaching Hospitals, cannot be scrapped because of the whims and caprices of non-medical doctors, on the flimsy ground that they are excluded from consideration in filling of that position. For the avoidance of any doubt, it is instructive that the University Teaching Hospitals (Reconstruction of Boards, etc) Act, CAPU15, VOL 15, Laws of the Federation of Nigeria, 2004 ,provides in section 7(4) (Function of the Board) that “Subject to the this Act, the Board shall have powers to do anything ,which, in its opinion, is calculated to facilitates the carrying out of its functions under this act “.

(F) MDCAN is opposed to the issues referred to Yayale Ahmed Committee.

MDCAN states “regarding the issues referred to Yayayale Ahmed Committee, which relates to the process of eligibility for appointment of Chief Medical Directors and Medical Directors of Teaching Hospitals, and the agitation of JOHESU & AHPA that their members ,who are not medical practitioners, be eligible for appointment, our client’s position is that the issue oh headship and management of the Teaching Hospitals is not a political or labour issue that can or should be negotiated with an amalgam of Association of non- medical practitioners in the Health Sector”

MDCAN made a final submission by stating through her lawyer “In view of the troubles our Country is going through, currently, your Excellency’s Government must do everything in its powers to ensure that Health Sector is not thrown into a disarray on account of ill motivated and ill decided positions taken on behalf of Government by Officials who seem not to be aware of, or care little about the havoc the decisions being taken by them will wreak on the Health Sector. It is for this reason that our client hereby calls on your Excellency to wade into these perennial issues of granting arbitrary, anti-healthcare delivery concessions in the Health Sector by Agents and Agencies of Government, just to placate and appease some workers in the Health Sector, even when those concessions, on the long term, will lead to the destruction of the Healthcare Delivery system in our Country. It is high time the system stopped granting concessions that will ruin the healthcare delivery system to a resentful and conspiratorial segment of the Health Sector workforce on the altar of political expediency, and in the illusion that doing so is the best way to guarantee industrial harmony.” MDCAN went further, “our client is grateful to Your Excellency for taking a swift action on the issues raised in this letter.” Now that we have shown the reasons given by MDCAN, can these reasons be tenable in the light of truth? Can MDCAN be justified to go on strike? What is the position of the law on these demands? Are the reason supported by the Public Service rules? are they in a position to make such demands? 

 

Let us critically analyze those reasons to see if they are a myth or a reality?

(A) Reason number one-Appointment of other Healthcare Professionals as Consultants.

Allopathic medicine did not originate in Nigeria it is a Western Medical System that was introduced herein by the British. The statement made by MDCAN that in the Health Sector it is only medical doctors that are appointed Consultants, and that the term is an exclusive designation for doctors, is not correct. In Britain, USA, Australia, and other Countries of the world it is not only medical doctors that are appointed as Consultants. Under the National Health Service (UK) Healthcare Professionals who are not doctors are appointed Consultants in their chosen areas of specialization. They are saddled with four major key functions.

(a)Expert clinical practice

(b)Professional leadership

(c) Education and training

(d) Research and services development.

 

There are Consultant Pharmacist, Consultant Physiotherapist, Consultant Radiographers, Consultant Nurses, Consultant Optometrist, and Consultant Biomedical Scientist called Medical Laboratory Scientist in Nigeria.etc. Note that Claire Geary is not a medical doctor and practices in UK. He is a Consultant Biomedical Scientist at Cambridge University Hospitals.NHS Foundation. He is a Consultant Biomedical Scientist in Cervical Cytology with experience in Specialist Reporting and Training. Even World Health Organization (WHO) appoints non medical doctors as Consultants. Prof Dennis Agbolahor was appointed a Consultant to WHO on Pathogenic Organism. And there are so many Nigerians who are Consultants to WHO and they are not medical doctors. 

 

A google search will show many recognized Charities that are Associations of non medical doctor consultants eg American Society of Consultant Pharmacist, Canadian Society of Consultant Pharmacist. Even you have Australian Society of Consultant Pharmacist. If other professionals are not appointed Consultants would such Countries have such registered and recognized Charities? Above all it is not MDCAN that is saddled with the function of creating posts and responsibilities in Nigeria. The Head of Service/National Council on Establishment has already done that, that non medical doctors are also Consultants in their specialized area. 

 

Appointment of other Healthcare Professionals as Consultants is also stated in their various schemes of Services. MDCAN is really misleading the Public, what she did not get in Court; she wants to get through the back door. The issues canvassed by MDCAN in the said open letter were what she canvassed in the case she applied in Court and lost. It should be noted that the statement that her application is still pending in court is false and misleading. In the suit MDCAN filed before his Lordship Hon. B A Adejumo, OFR, with suit number-NICN/ABJ/269M/2012 on 9th October,2013 seeking among other prayers, an order setting aside the judgment of this Court delivered in suit no. NICN/ABJ/238/2012 (JOHESU case against the Government) on the 22nd day of July, 2013 , the Honorable Judge ruled against MDCAN. Her prayer to set aside the judgment was stroke out because she was not a necessary party in the case and lack of merit on the 21st May 2014.

 

How can MDCAN go on strike on a case she lost in Court? Again MDCAN has always used falsehood to misinform the public; Government has not appointed “laboratory technicians” as Consultants rather it is Medical Laboratory Scientist who meet the criteria as exemplified in the scheme of service that are appointed Consultants. In line with the MLSCN Act 11 2003, in section 19(c) there are three categories of Medical Laboratory Personnel-Medical Laboratory Scientist, Medical Laboratory Technicians and finally Medical Laboratory Assistants. It is among the Medical Laboratory Scientist, which is the apex/high man power professional among the Medical Laboratory Personnel, that the Government appoints Consultants, just as what is seen in UK. 

 

MDCAN has missed the mark on who is a Consultant. William A Cohen, PhD, the author of the best seller “How to make it big as a Consultant” defines a consultant in page 3 as “a Consultant is simply anyone who gives advice or performs other services of a professional or semi professional nature in return for compensation.” Is MDCAN claiming to be the only professional group in the Health Sector? When the Boards of Hospitals, creates and duplicates the illegal offices of the DCMAC it is not an aberration and an oddity, but when Government does the right thing by upholding the Consultant status of other Healthcare Professionals in line with the law, MDCAN cries wolf. So where is the sincerity? 

 

(B) Reason number two- MDCAN was not contacted before Government obeyed Court Judgment by restoring Consultancy Status to other Healthcare Professionals. MDCAN forgot that without being prejudicial to the functions of the President of the Federal Republic of Nigeria, in line with the 1999 constitution as amended in section 5(1) subject to the provisions of this constitution, the executive powers of the federation 

(a) Shall be vested in the President, and may, subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly nor through the Vice President and Ministers of the Government of the Federation or Officers in the Public Service of the Federation; and

(b) Shall extend to the execution and maintenance of this constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, powers to make laws.

 

The President reached an agreement with JOHESU through, Ministers and Officers in the Public service as a result of the Court Judgment granted in favour of JOHESU, based on the principle of collective bargain which is a right OF JOHESU members. The NIC judgment relied on section 14(3) of the trade dispute act CAP T8 LFN 2004 and such awards are sacrosanct. Section 14(3) of the TDA provides that

“In so far as the terms and conditions of employment to be observed by an employer in accordance with any award made by the National Industrial Court under this section are more favorable than any statutory provisions affecting the terms and conditions of employment of the workers concerned, the award shall prevail. “

 

Restoring Consultancy status to other Healthcare Professional was the right thing to do. And the President through the Agents of Government acted in line with section 18(1) of the University Teaching Hospital (Reconstruction of Boards etc) ACT CAP U 15 ,VOL 15. LFN 2004, which provides

“The President may notwithstanding any provision of this act, take such measures as occasion may warrant in order to improve the efficiency or due administration of the Teaching Hospital specified in the schedule to this Act”.

Stopping the Consultancy Status of other Healthcare Professionals was in error.

 

(c) The third reason given by MDCAN in the said letter-Is that MDCAN has a case before the Court and that Government has appealed the case. First and foremost it is false that MDCAN has a case or application before the court as at the time of writing for determination on this matter. The application that was made by MDCAN for the Court to set aside the Judgment in favour of JOHESU was thrown out for lack of merit. MDCAN was not a party to the suit to the JOHESU suit. Again why is MDCAN crying more than the bereaved? The same Government that initially took JOHESU to Court is the one that signed the agreement with JOHESU to give them their entitlement, which is the right thing to do. MDCAN that is agitating for Government to continue to create the illegal office of the DCMAC is the one also calling for the non implementation of Court judgment in favour of JOHESU, is that not double standard? MDCAN is a charity and not a Government statutory body, so they are not in any position to interfere with the machinery of governance.

 

(d) Reason number four is that Government obeying NIC Judgement in favour of JOHESU is contemptuous. MDCAN is always deceiving the public, how can obeying a Court Judgment/Order be contemptuous? The same Government that took JOHESU to Court and the judgment was not in her favour, decided to do the right things by entering into agreement with JOHESU to grant them their lawful entitlement. Our lawyer a Senior Counsel, Bar K O Ijatuyi, who is part of the JOHESU case, informs us and we believe him that an intent to or an appeal is not a stay of execution. There is no Court as at today that has upturned the NIC judgment in favour of JOHESU. The NIC judgment is sacrosanct. So, why is MDCAN holding brief for the Government? And why is she misleading the general public?

 

(e) The fifth reason given by MDCAN, is that Government was in error to have abolished the illegal office of DCMAC. She tried to give legitimacy to the office by wrongfully sighting section 7(4) of the University Teaching Hospital (Reconstruction of Boards, etc) Act U 15,LFN 2004.It is not the duty of Boards of Hospitals to go outside their functions and laws setting up a Government Parrastatals. Section 5 subsection five of the same Act, provides “Subject to this Act, the Board shall have power to appoint (including power to appoint on promotion and transfer and of confirmation of appointments), advance, terminate or discipline employees (including consultants) holding or acting in any office in the hospital: and any such appointment shall be made having due regard to any personnel establishment approved for the hospital”. 

 

Note that there is no personnel establishment or statutory approval for the office of the DCMAC in the Hospitals. The office is an illegal creation to undermine the statutory personnel established Scheme of Service of other Healthcare Professionals, by MDCAN members, who are the holders of Hospital Chief Executive Officers presently. The President abolishing the illegal office was in good faith. And the action of the President is ultra jure. Section 18(1) of the Teaching Hospital Act quoted above has this to say “The President may, not withstanding any provision of this Act, take such measures as occasion may warrant in order to improve the efficiency or due administration of the Teaching Hospitals specified in the schedule of this act”. 

 

Again the Public Service Rule 160101 defines, “Parastatals” as “a Government-owned organization established by statute to render specified service(s) to the public. It is structured and operates according to the instrument establishing it and also comes under the policy directive of government.” Office of the DCMAC is outside the organic law setting up the Teaching Hospitals. The Minister of Health was part of the Government functionaries that signed agreement with JOHESU, so all Hospital Boards are bound to obey that policy directive stated in the agreement. Public Service Rule 160201(c) states a Minister exercises control of parastatals through the Board of the parastatals only. Furthermore section 17 of the teaching hospital Act provides thus “The Minister may give to the Board directions of a general character or relating generally to a particular matters (but not to any individual persons or case) with regards to the exercise by the Board of its functions under this Act, and it shall be the be the duty of the Board to comply with this direction; but no direction shall be given which is inconsistent with the duties of the board under this act.” Creating the office of DCMAC is not in line with the function of the Board. 

 

This is outside the powers of the Board, and doing that is ultra virse.

(f) MDCAN is not in agreement with the setting up of YAYALE AHMED COMMMITTEE to look into the other lingering issues causing disharmony in the Health Sector, like the appointment of the Chief Medical Director, the explanation on who is medically qualified. And the issue of appointment of Chief Medical Director/Medical Director from permanent staff of the Teaching Hospitals rather than from Universities; and the lopsidedness of advertorial for appointment of Chief Medical Directors/Medical Directors in favour of Medical Doctors. It is indeed petty that MDCAN wants to go on strike in order to obstruct the operation of this Committee. If MDCAN knows that what she is doing is right then let her not jump the gun but wait for the Committee to finish her work and bring out their findings and report.

 

From the above we can see that MDCAN has no basis to have written the Federal Government such a letter, because the issues raises undermine the powers of the President to do what is right. MDCAN on a voyage of ego trip, has shown that the singular reason for such agitation is purely prejudice against other Healthcare Professionals who like the members of MDCAN are also employees of the Government. The action of MDCAN violates the 1999 constitution as amended of the Federal Republic of Nigeria. As Public Servants MDCAN and her members are bound to the code of conduct of the Public Service of the Federation. Section 172 of the same Constitution states “A person in the Public Service of the Federation shall observe and conform to the code of conduct of the Federation “.

 

The fifth schedule part 1 code of conduct for Public Officers says:

(1) A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.

(9) A public officer shall not do or direct to be done, in abuse of his office, any contrary act prejudicial to the rights of any other person or contrary to.

It is so glaring that what MDCAN/NMA is asking is prejudicial and tramples on the rights of Nigerian Citizens. Above all the issue of who is medically qualified is before a Court of competent jurisdiction, with suit number is FHC/AWK/CS/38/2013.So how can MDCAN and her members be going on strike on an issue before a court. ?

 

CONCLUSION.

MDCAN/NMA has become a fifth columnists working against the state. It is sad that MDCAN/NMA and her members who have benefitted so much from the state are now turning themselves against the Nigerian state to become the killer of the Nigerian People, instead of being the Physician who is to be the healer of the patient and people. Nigerians must rise and say no to this medical imperialism by using the instrumentality of the law to stop MDCAN/NMA from inflicting untold hardship on her citizenry. The Federal Government through the Ministry of Health under Prof Onyebuchi CHukwu must act to maintain law and order, now that MDCAN/NMA has told the world that it is because of some of the things she granted to JOHESU on merit, is the reason MDCAN/NMA is going on strike. She should seek an injunction restraining MDCAN/NMA from going on strike just as she did to JOHESU, pending the determination of the motion on notice to know if MDCAN/NMA has the locus standi to go on strike when she is not a Trade Union. 

 

JOHESU should be firm to seek a legal redress to restrain MDCAN/NMA in this acts of lawlessness, if the Government does not act. There must be a total restructuring of the Health Sector. All Nigerians from all works of life must condemn these acts of sabotage against the State by doctors of Allopathic Medicine under the auspices of MDCAN/NMA. The Nigerian Government as a matter of urgency should support the Natural Medicine Development Agency Kofo Abayomi Victoria Island, to reposition our Traditional Medicine to be like what is seen in China, USA, U.K, India, Korea etc. And it should be integrated into the mainstream Healthcare System in Nigeria. Allopathic Monopolistic Medicine should give way to Pluralistic Medicine. Government should create an enabling environment for the practice of the different Medical Systems like, Functional Medicine, Holistic Medicine, Ethnomedicine, Ayurvedic Medicine, Homeopathy, Osteopathy etc. All over the world, no country is currently solely dependent on one Medical System. Nigerians must say no to MDCAN/NMA that has become anti people. The Nigerian Government should not allow herself to be blackmailed by MDCAN/NMA. 

 

She should first and foremost challenge MDCAN/NMA for acts of impunity against the state. The Federal Government should take a leaf from Governor Fashola of Lagos State, for enough is enough. The Government should also take a queue from the former governor of Anambra state, Mr Peter Obi.

Signed

Comr. Ajufo,Benjamin Chukwunonso comr. Asiodu,Anthony Uche

Secretary,AMLSN Chairman,AMLSN 

FMC ASABA CHAPTER. FMC ASABA CHAPTER